Papers  from    the    Historical   Seminary 
of  Brown    University 

Edited  by  J.  FRANKLIN  JAMESON,  Ph.  D.,  LL.  D.,  Professor  of  History 


X 


THE    COUNCIL   OF   CENSORS 


LEWIS  HAMILTON  HEADER,  A.  M. 


REPRINTED  FROM  THE 
PENNSYLVANIA  MAGAZINE  OF  HISTORY  AND  BIOGRAPHY 

AND  FROM  THE 
PROCEEDINGS  OF  THE  VERMONT  HISTORICAL  SOCIETY 


I    UHIV 


PROVIDENCE 
1899 


Papers  from    the    Historical    Seminary 
of  Brown    University 


Edited  by  J.  FRANKLIN  JAMESON,  Ph.  D.,  LL.  D.,  Professor  of  History 

!\ 


X 


THE    COUNCIL   OF  CENSORS 


BY 

LEWIS  HAMILTON  MEADER,  A.  M. 


REPRINTED  FROM  THE 
PENNSYLVANIA  MAGAZINE  OF  HISTORY  AND  BIOGRAPHY 

AND  FROM  THE 
PROCEEDINGS  OF  THE  VERMONT  HISTORICAL  SOCIETY 


PROVIDENCE 
1899 


£' 

-ft* 


Reprinted  from  THE  PENNSYLVANIA  MAGAZINE  OF  HISTORY  AND 
BIOGRAPHY,  October,  1898. 


THE  COUNCIL  OF  CENSORS. 


I.  INTRODUCTORY. 

In  1776  a  Constitutional  Convention  met  in  Philadelphia 
and  framed  a  constitution  for  Pennsylvania  which  contained 
the  following  provision  for  its  change  or  amendment : l 

"  Sect.  47.  In  order  that  the  freedom  of  the  commonwealth  may  be 
preserved  inviolate  forever,  there  shall  be  chosen  by  ballot  by  the  free 
men  in  each  city  and  county  respectively,  on  the  second  Tuesday  in 
October,  in  the  year  one  thousand  seven  hundred  and  eighty-three,  and 
on  the  second  Tuesday  in  October  in  every  seventh  year  thereafter,  two 
persons  in  each  city  and  county  of  this  state,  to  be  called  THE  COUNCIL 
OF  CENSORS  ;  who  shall  meet  together  on  the  second  Monday  of  No 
vember  next  ensuing  their  election ;  the  majority  of  whom  shall  be  a 
quorum  in  every  case,  except  as  to  calling  a  convention,  in  which  two 
thirds  of  the  whole  number  elected  shall  agree  :  And  whose  duty  it  shall 
be  to  enquire  whether  the  constitution  has  been  preserved  inviolate  in 
every  part ;  and  whether  the  legislative  and  executive  branches  of  gov 
ernment  have  performed  their  duty  as  guardians  of  the  people,  or  as 
sumed  to  themselves,  or  exercised  other  or  greater  powers  than  they  are 
intitled  to  by  the  constitution :  They  are  also  to  enquire  whether  the 
public  taxes  have  been  justly  laid  and  collected  in  all  parts  of  this  com 
monwealth,  in  what  manner  the  public  monies  have  been  disposed  of, 
and  whether  the  laws  have  been  duly  executed.  For  these  purposes  they 
shall  have  power  to  send  for  persons,  papers,  and  records ;  they  shall 
have  authority  to  pass  public  censures,  to  order  impeachments,  and  to 
recommend  to  the  legislature  the  repealing  of  such  laws  as  appear  to 
them  to  have  been  enacted  contrary  to  the  principles  of  the  constitu 
tion.  These  powers  they  shall  continue  to  have,  for  and  during  the 
space  of  one  year  from  the  day  of  their  election  and  no  longer :  The 
said  council  of  censors  shall  also  have  power  to  call  a  convention, 

1  Poore,  "  Charters  and  Constitutions,"  Vol.  II.  p.  1548. 

1 


2  The  Council  of  Censors. 

to  meet  within  two  years  after  their  sitting,  if  there  appear  to  them  an 
absolute  necessity  of  amending  any  article  of  the  constitution  which 
may  be  defective,  explaining  such  as  may  be  thought  not  clearly  ex 
pressed,  and  of  adding  such  as  are  necessary  for  the  preservation  of  the 
rights  and  happiness  of  the  people  :  But  the  articles  to  be  amended,  and 
the  amendments  proposed,  and  such  articles  as  are  proposed  to  be  added 
or  abolished,  shall  be  promulgated  at  least  six  months  before  the  day 
appointed  for  the  election  of  such  convention,  for  the  previous  consider 
ation  of  the  people,  that  they  may  have  an  opportunity  of  instructing 
their  delegates  on  the  subject."  x 

This  constitution  vested  the  supreme  executive  power  in 
a  president  and  council,  the  supreme  legislative  power  in  a 
House  of  Representatives  of  the  freemen  of  the  Common 
wealth  or  State  of  Pennsylvania,  but  it  recognized  no  sepa 
rate  body  invested  with  supreme  judicial  power. 

This  so-called  Council  of  Censors  constituted  the  recog 
nized  legal  check  on  the  executive  and  legislative  branches 
of  the  government,  and  in  it  alone  was  vested  the  means 
whereby  the  constitution  could  be  amended  or  altered. 

This  council  was  to  be  elected  once  in  seven  years  by  the 
people,  each  county  and  city  to  be  represented  by  two  coun 
cillors  ;  it  was  to  exist  and  have  power  one  year  from  the 
date  of  its  election,  and  no  longer.  It  was  a  feature  of  the 
constitution  of  Pennsylvania  from  1776  to  1790,  and  of  that 
of  Vermont  from  1777  to  1869. 

It  is  the  purpose  of  this  inquiry  to  trace  the  growth,  in 
Pennsylvania  and  elsewhere,  of  this  device  for  preserving 
and  revising  constitutional  provisions,  and  to  note  the  causes 
which  have  led  to  its  being  superseded  and  finally  driven 
from  the  field. 

II.  CENSORS  IN  EUROPE. 

The  name,  Council  of  Censors,  leads  one  to  look  for  a 
model  in  the  government  of  Rome,  and  to  examine  this  to 
detect  points  of  similarity  and  contrast;  for  one  might 
reasonably  conjecture  that  when  a  people  in  a  given  in- 

1  "  The  Proceedings  relative  to  calling  the  Conventions  of  1776  and 
1790,  the  Minutes  of  the  Convention  .  .  .  and  of  the  Council  of  Cen 
sors,"  Harrisburg,  1825. 


The  Council  of  Censors.  3 

stance  were  about  to  frame  a  constitution  over  which  the 
people  should  have  control,  the  most  prominent  examples 
of  history  would  be  studied  to  the  end  that  their  excel 
lencies  might  be  imitated  and  their  errors  and  weaknesses 
avoided.  This  hypothesis  seems  the  more  reasonable  when 
one  considers  that  the  models  of  Greece  and  Eome,  together 
with  those  of  Rousseau  and  other  theorists,  were  the  only 
prominent  ones,  and  that  these,  especially  the  former,  were 
within  reach  of  scholarly  men  and  men  of  affairs  at  the 
time  when  the  Pennsylvania  instrument  was  framed ;  and 
other  reasons  will  manifest  themselves  as  we  proceed  with 
this  study. 

Censors  were  appointed  at  Rome  after  443  B.C.1  They 
were  usually  (after  the  Second  Punic  War)  those  who  had 
been  consuls.  They  held  office  for  five  years,  but  their 
active  work  was  done  during  the  first  eighteen  months  of 
the  period  for  which  they  were  elected.  They  exercised 
supervision  over  certain  Roman  customs.  They  could  expel 
a  senator,  deprive  a  knight  of  his  horse,  regulate  the  public 
taxes,  inspect  the  public  buildings,  and  divide  the  people 
into  their  proper  centuries  and  classes.  The  position  of  a 
censor  was  one  of  the  most  honorable  and  powerful  in  the 
Roman  republic,  and  it  existed  for  four  centuries,  or  until, 
under  the  empire,  the  control  of  that  office  was  assumed 
by  the  state. 

This  institution  of  censors  bore  a  certain  resemblance  to 
an  institution  connected  with  the  Spartan  state,  known  as 
the  ephors.  This  office  was  important  from  early  times, 
and  it  furnished  a  check  on  the  active  government,  repre 
senting  as  it  did  the  community  of  Sparta.  The  ephors 
were  five  in  number,  and  they  held  office  for  one  year.  It 
was  their  duty  to  superintend  public  morals  and  education. 
They  exercised  a  strong  influence  on  legislation  and  even 
checked  the  action  of  the  executive.2 

1  Kennett's  "  Koman  Antiquities/'  London,  1769,  fourteenth  edition, 
pp.  112-114.    Kennett's  book  is  quoted  as  one  of  those  most  likely  to 
have  been  examined  by  "  the  fathers." 

2  Bojeson's  "  Greek  and  Roman  Antiquities,"  pp.  58,  59. 


4  The  Council  of  Censors. 

Plato  evidently  has  a  similar  institution  in  view  when  he 
asserts,  in  his  "Laws,"1  that  guardians  should  be  sought 
who  are  incorruptible, "  to  establish  more  firmly  institutions 
in  the  state  which  are  good  already,  and  amend  what  is  defi 
cient."  He  would  have  the  nocturnal  council,  composed  of 
men  trained  by  travel  and  experience,  meet  daily  to  consider 
matters  of  public  importance ;  and  he  would  regard  this  as 
"  a  guard  set  according  to  law  for  the  salvation  of  the  state." 

Montesquieu,  in  his  "  Spirit  of  the  Laws,"  draws  on  the 
Roman  plan  of  public  censors  and  the  Greek  ephorate  as 
very  useful  methods  for  keeping  public  officials  and  laws 
subservient  to  the  people.2  He  recites  that  the  Spartan,  con 
scious  of  this  check,  feared  the  tribunal  of  public  opinion 
far  more  than  did  the  Athenian  official,  who  well  knew  the 
weakness  of  his  state  in  passing  censure  on  his  public  acts. 

About  1762  Rousseau's  "  Coutrat  Social"  appeared,  which 
devoted  a  chapter  to  his  proposed  method  by  which  the 
sovereign  people  could  hold  their  magistrates  in  check. 
He  felt  that  modern  nations  had  lost  that  power  which  was 
once  so  salutary, — "  chez  les  Romains  et  mieux  chez  les 
Lacedemoniens." 3  His  theory  was,  ".  .  .  that  the  censor 
may  be  useful  in  preserving  the  customs,  but  never  in  re 
establishing  them.  Establish  censors  while  the  laws  are  vig 
orous  ;  as  soon  as  they  become  weakened  everything  is  past 
hope ;  nothing  legitimate  has  force  when  the  laws  have  none. 
The  censor  maintains  the  standard  of  morals  by  preventing 
the  corruption  of  opinions,  by  preserving  their  rectitude 
through  wise  applications,  sometimes  even  by  fixing  them 
when  they  are  uncertain." 

It  is  evident  that  Rousseau,  having  in  mind  the  censors 
of  Rome  and  the  Greek  ephors,  planned  an  institution  re 
sembling  that  which  we  are  studying. 

The  American  colonists  of  the  third  quarter  of  the  eigh 
teenth  century  were  men  who  had  had  occasion  to  study  the 
nature  and  limitations  of  popular  government.  There  were 

1  Plato's  "Dialogues"  (Jowett's  trans.),  Vol.  V.  Sects.  951,  961,  968. 

2  Montesquieu,  "  Works"  (trans.,  1777),  Vol.  I.,  Chap.  VII.,  pp.  61-63. 

3  Rousseau,  "  GEuvres  Completes,"  Paris,  1793,  T.  II.  pp.  210-213. 


The  Council  of  Censors.  5 

educated  men  among  them,  men  who  had  been  liberally  in 
structed  in  American  colleges,  whose  courses  of  study  were 
principally  in  the  classics.  No  classical  student  could  fail 
to  know  something  of  the  history  of  Greece  and  Rome; 
while  to  men  like  the  Adamses,  Franklin,  Dickinson,  and 
many  whose  names  are  less  widely  known,  Greek  and  Ro 
man  history  would  furnish  foundation  studies  in  popular 
government.  There  were  ample  sources  in  English  for 
studies  of  classic  models  of  government.  In  1769  Ken- 
nett's  "Roman  Antiquities"  had  passed  to  its  fourteenth 
edition,  and  was  probably  accessible  to  the  students  in  every 
American  college,  while  similar  studies  in  the  antiquities  of 
Greece,  one  may  reasonably  infer,  would  have  been  equally 
accessible.  Controversial  letters  in  the  newspapers  abounded 
with  signatures  drawn  from  Greek  and  Roman  classics. 
"  Spartanus,"  "  Cato,"  and  "  Cassandra"  honored  the  names 
of  pamphleteers  not  only  in  Philadelphian  but  in  other 
American  papers ;  and  many  a  statesman  of  antiquity  was 
represented  as  the  responsible  person  for  dissertations  on 
the  relation  of  the  people  to  legitimate  government. 

It  would  be  presuming  contrary  to  reasonable  inference 
to  assume  that  these  men  were  not  acquainted  with  the 
views  of  Montesquieu  and  Rousseau  on  popular  govern 
ment.  The  works  of  the  former  had  been  before  the  stu 
dents  of  statecraft  in  Europe  for  a  quarter  of  a  century, 
while  Rousseau's  "  Contrat  Social"  began  its  radical  mission 
ten  years  later. 

Rousseau  was  the  apostle  of  extreme  democracy.  The 
leaven  of  his  influence  was  manifest  in  Europe  during  the 
last  quarter  of  the  eighteenth  century ;  and  so  it  came  about 
that  the  Council  of  Censors  has  a  European  history,  which 
we  proceed  first  to  recount. 

At  the  height  of  the  French  Revolution  Robespierre,  on 
May  10,  1793,  delivered  a  speech  in  the  National  Conven 
tion,  wherein  he  says,  in  the  course  of  a  great  debate1  on  the 
proposed  Constitution  of  France,  that  the  executive  power 

1  Le  Moniteur,  Lundi,  13  Mai,  1793,  p.  584,  second  column. 


6  The  Council  of  Censors. 

is  limited  by  the  Corps  Legislatif,  and  that  every  public  func 
tionary  should  be  amenable  for  his  conduct  to  a  tribunal  of 
the  people;  that  a  representative  government  fails  of  its 
legitimate  ends  that  does  not  obey  and  cannot  be  compelled 
to  obey  the  mandate  of  the  popular  will. 

We  quote  these  words  r  "  II  est  naturel  que  le  corps  charge 
de  faire  les  lois,  surveille  ceux  qui  sont  commis  pour  les 
faire  executer.  Les  membres  de  I'agence  executive  seront 
done  tenus  de  rendre  compte  de  leur  gestion  au  corps  legis- 
latif.  En  cas  de  prevarication,  il  ne  pourra  pas  les  punir, 
parce  qu'il  ne  faut  pas  lui  laisser  ce  moyen  de  s'emparer  de 
la  puissance  executive ;  mais  il  les  accusera  devant  un  tribu 
nal  populaire  dont  1'unique  fonction  sera  de  connaitre  des 
prevarications  des  fonctionnaires  publics."1 

May  13,  1793,  the  National  Convention  adopted  a  pro 
gramme  by  which  its  deliberations  on  the  new  constitution 
should  be  governed.  The  twelfth  item  in  that  programme 
read  as  follows : 

"  Chapitre  XII.  Comment  le  peuple  exerce  lui-meme 
sa  souverainete  sur  les  fonctionnaires  publics  et  sur  les 
actes."2 

On  the  10th  of  June,  1793,  Herault  de  Sechelles,  repre 
senting  the  Committee  of  Public  Safety,  delivered  a  speech 
in  defence  of  the  project  of  a  constitution  which  he  had 
brought  forward,  and  in  which  he  recognized  the  Council 
of  Censors  as  an  essential  feature  to  make  the  government 
of  France  not  alone  republican,  but  democratic.  Chapter 
XV.  of  the  proposed  French  Constitution  of  1793  read  as 
follows : 

"  Du  grand  jure  national,  Article  Premier : 

I.  "  Le  grand  jure  est  institue  pour  garantir  les  citoyens 
de  1'oppression  du   corps   legislatif  et  du  conseil.      Tout 
citoyen  opprime  par  un  acte  particulaire,  a  droit  d'y  re- 
courir. 

II.  "  La  liste  des  jures  est  composee  d'un  citoyen,  elu 
dans  chaque  departement  par  les  assemblies  primaires.     Le 

1  Le  Moniteur,  Lundi,  13  Mai,  1793,  p.  584,  second  column. 

2  Ibid.,  Lundi,  20  Mai,  1793,  p.  608,  first  column. 


The  Council  of  Censors.  7 

grand  jure  est  renouvele  tons  les  ans  avec  le  corps  legis- 
latif. 

III.  "II  n'applique  point  les  peines.  II  renvoie  devant 
les  tribunaux. 

IY.  "  Les  noms  des  jures  sont  deposes  dans  une  urne  au 
sein  du  corps  legislatif." l 

In  defence  of  this  so-called  "  national  grand  jury,"  or 
Council  of  Censors,  Herault  used  these  words :  "  Nous  en 
avons  cherche  le  remede  dans  la  formation  d'un  grand  jure, 
destine  &  venger  le  citoyen  opprime  dans  sa  personne,  des 
vexations  (s'il  pouvait  en  survenir) — du  corps  legislatif  et  du 
conseil :  tribunal  imposant  et  consolateur,  cree  par  le  peuple, 
a  la  meme  heure,  et  dans  les  memes  formes  qu'il  cree  ses 
representans ;  auguste  asyle  de  la  liberte,  ou  nulle  vexation 
ne  serait  pardonnee,  et  ou  le  mandataire  coupable  n'echappe- 
rait  pas  plus  a  la  justice  qu'a  1'opinion." 2 

Herault  de  Sechelles's  "Rapport"3  is  full  of  enthusiasm 
for  the  Council  of  Censors.  He  advocates  its  adoption  and 
defends  its  good  features  with  more  emphasis  than  one  finds 
in  Rousseau's  chapter  on  "  The  Censors"  in  his  "  Contrat 
Social." 

In  the  French  Constitution  as  adopted  in  1795  this  provi 
sion  was  omitted.  The  excesses  of  the  French  democracy 
following  the  Convention  of  1793  caused  those  in  authority 
to  be  unwilling  to  place  so  much  power  in  the  hands  of  the 
people  as  the  plan  of  Herault  de  Seychelles  contemplated. 
The  next  attempt  in  Europe  to  make  use  of  this  instrument 
of  popular  government  occurred  when  Maria  Pagano  drew 
up  a  constitution  for  the  Neapolitan  republic  in  1799.4 
This  was  modelled  on  the  French  Constitution  of  1793. 
For  the  directory  it  substituted  a  system  of  archons,  who 
could  hold  office  only  two  years.  In  matters  of  appeal,  one 

1  Le  Moniteur,  19  Juin,  1793,  p.  732,  second  and  third  columns. 

2  Ibid.,  Jeudi,  13  Juin,  1793,  p.  707,  second  column. 

3  Kindly  lent  by  the  library  of  Cornell  University. 

*"  Biographic  Universelle,"  Paris,  1844,  T.  LXXVI.,  LXXVIL 
Among  his  works  is  mentioned  "  VII.  Projet  de  constitution  pour  a 
re"publique  Napolitaine,  1799." 


8  The  Council  of  Censors. 

section  of  one  tribunal  might  appeal  to  another  section ;  or 
one  section  of  one  department  could  appeal  to  another  de 
partment.  This  was  especially  accomplished  by  an  ephorate 
and  by  a  tribunal  of  censure,  which  was  a  distinguishing 
feature  of  the  Neapolitan  constitution.  The  ephorate  was 
a  sort  of  conservative  senate,  and  its  duty  was  to  keep  the 
desires  of  the  different  branches  within  reasonable  limits 
and  to  place  a  check  on  usurpations.  The  tribunal  of  cen 
sure  was  an  imitation  of  the  domestic  censure  which,  ac 
cording  to  Montesquieu,  assisted  in  a  remarkable  manner 
in  the  preservation  of  the  customs  of  the  ancient  republic 
of  Rome. 

This  constitution,  like  that  of  1793  in  France,  was  never 
tested  by  use.  French  reverses  in  the  north  of  Italy  had 
their  consequences  in  Naples.  Pagano  gave  up  the  pen  for 
the  sword,  and  with  other  members  of  his  provisional  gov 
ernment  fell  into  the  hands  of  the  enemy.  He  perished  on 
the  scaffold  October  6,  1800. 

At  the  close  of  the  eighteenth  century,  in  Europe,  the 
method  of  regulating  governments  by  a  tribunal  created  and 
controlled  by  the  people  had  no  abiding  place  on  the  Conti 
nent.  Montesquieu  and  Rousseau  had  drawn  on  the  Greek 
ephors  and  the  Roman  censors  for  a  popular  plan  for  regu 
lating  government  officials ;  but  it  was  only  a  theory,  and 
the  excesses  of  the  French  Revolution  prevented  its  having 
a  fair  trial  in  practice. 

III.  PRELIMINARIES  IN  AMERICA. 

In  America  the  political  doctrines  of  Rousseau  took  root 
and  bore  fruit ;  but  they  were  modified  by  the  more  conser 
vative  views  of  Locke.  Traces  of  Rousseau's  views  may 
perhaps  be  seen  in  the  opening  paragraphs  of  Paine's  "  Com 
mon  Sense ;"  and  Paine's  connection  with  the  Pennsylvania 
radicals  who  made  the  constitution  of  1776  is  well  known. 
There  had  long  been  a  feeling  of  unrest  in  the  colonies,  a 
feeling  that  the  people  should  control  their  political  affairs ; 
that  the  governed  should  of  right  command  their  servants 
It  was  in  the  air.  There  were  conservatives 


The  Council  of  Censors.  9 

who  sought  only  to  modify  the  policy  of  the  crown  in  certain 
details.  They  had  no  desire  to  break  up  the  foundations 
of  the  government  and  build  on  a  new  foundation.  The 
radical  party  would  break  with  the  mother  country;  it 
would  go  back  to  first  principles;  it  would  stand  by  the 
rights  of  man.  Of  the  former  party  John  Dickinson  was 
a  type;  of  the  latter  were  Paine,  Franklin,  and  Jefferson. 
In  1776  the  radical  party  had  succeeded  in  securing  the 
independence  of  the  colonies. 

Before  passing  to  consider  at  length  the  relation  of  the 
Council  of  Censors  to  the  constitutions  of  Pennsylvania  and 
Vermont,  a  slight  digression  may  throw  a  side-light  on  the 
views  which  prevailed  with  reference  to  popular  government 
in  the  country  at  large. 

In  1776  a  pamphlet  was  published  with  the  title,  "  The 
People  the  Best  Governors. "  *  It  took  the  ground  that 
sovereignty  lies  with  the  people ;  that  the  Legislature  has 
no  right  to  appoint  agents  to  restrain  governmental  action, 
because  this  appointing  power  lies  with  the  people  in  virtue 
of  sovereignty,  and  sovereignty  cannot  be  delegated.  It 
suggested  a  senate  or  council,  to  be  elected  by  the  people, 
to  check  legislation,  resembling  what  is  now  known  as  a 
State  Senate,  but  with  a  partial  resemblance  also  to  a  Council 
of  Censors.  The  foregoing  statement  of  the  need  of  popu 
lar  checks  on  representative  government  is  followed  by  a 
statement  of  the  specific  method  to  be  employed : 

"  4thly,  That  the  people  chuse  annually  by  ballot  in  their  town  meet 
ings,  a  council,  consisting  of  twelve  persons,  through  the  government  at 
large,  whose  business  shall  be  to  help  in  preparing  matters  for  the  con 
sideration  of  the  assembly,  to  assist  them  with  their  advice.  And,  lastly, 
it  shall  be  their  duty  to  inquire  into  every  essential  defect  in  the  regula 
tions  of  government,  and  to  give  the  people  seasonable  notice  in  a  public 
way,  with  their  opinion  respecting  the  matter." 

The  view  of  the  pamphleteer  seems  to  have  been  that  the 
people  are  the  best,  the  real  governors,  and  that  a  limited 
number  of  men,  duly  elected,  may  constitute  a  regulative 

1  Text  in  Chase's  "  History  of  Dartmouth  College,"  Appendix  D. 

* 


10  The  Council  of  Censors. 

board.  The  Rousseau  idea  is  evidently  involved  in  the  sug 
gestion,  even  though  the  Latin  name  of  "  Censors"  is  absent, 
and  a  permanent  upper  House  is  contemplated. 

Only  two  American  States  have  employed  the  Council  of 
Censors  in  their  fundamental  law, — Pennsylvania  from  1776 
to  1790,  and  Vermont  from  1777  to  1869 — almost  a  century. 
To  these  two  examples  most  of  the  further  consideration  of 
this  subject  will  be  devoted. 

In  the  constitution  which  Rev.  Samuel  Houston  drew  up 
for  the  State  of  Frankland  in  1785  there  was  a  provision 
for  a  Council  of  Safety  to  be  elected  once  in  five  years. 
Its  general  features  were  quite  like  those  of  the  Council  of 
Censors.  This  constitution  failed  of  ratification,  and  when 
a  constitution  was  made  later  for  Tennessee  this  radical 
feature  did  not  appear.1 

IV.  PENNSYLVANIA:  THE  CONSTITUTION  OF  1776. 

On  May  15,  1776,  the  Continental  Congress  voted  that 
the  colonies  be  requested  "  to  adopt  such  government  as 
shall  in  the  opinion  of  the  representatives  of  the  people 
best  conduce  to  the  happiness  and  safety  of  their  constitu 
ents  in  particular  and  Americans  in  general." 2  Acting  on 
this  request,  the  citizens  of  Pennsylvania  elected  delegates 
to  a  Constitutional  Convention  which  met  July  5,  1776, 
and  continued  its  sittings  to  September  28  of  the  same 
year. 

The  framing  of  a  new  constitution  for  the  province  of 
Pennsylvania  involved  many  interests.  It  lined  up  the  two 
parties,  or  political  interests,  of  Pennsylvania  on  the  same 
principles  that  had  divided  them  ten  years  earlier.  Those 
who  opposed  the  continuance  of  the  proprietary  govern 
ment  in  1764  favored  the  plan  for  a  new  constitution, 
favored  the  extension  of  the  suffrage,  favored  severing  the 

1  Eamsay's   "History  of   Tennessee,"  pp.  282  et  passim,;  American 
Historical  Magazine,  1896.    The  New  York  Tammany  Society,  as  is 
shown  by  its  manuscript  records,  had  in  its  early  days  officials  called 
censors. 

2  "Journals  of  Congress,"  Vol.  II.  p.  166. 


f  , 


g 
The  Council  of  Censors.  11 

ties  which  had  existed  between  the  colony  and  Great  Britain. 
In  this  party  were  the  radicals  of  Philadelphia  and  of  the 
more  thickly  populated  sections  of  the  adjacent  counties, 
and  with  them  consorted  the  Scotch-Irish  and  Presbyterians, 
and  the  inhabitants  of  the  remoter  sections,  who  felt  that 
they  had  grievances  against  the  proprietary  government. 
The  Quaker  and  German  elements  were  conservative.  They 
had  stood  for  the  retention  of  the  proprietary  government ; 
they  stood  for  good  order,  for  keeping  political  power  in  the 
hands  of  those  who  were  known  to  be  safe.  They  dis 
trusted  the  people  whom  a  fifty-pound  requirement  in 
property  disfranchised.  Opposed  to  the  unjust  efforts  for 
taxation  on  the  part  of  the  crown  in  1764,  they  now  op 
posed  independence  arid  rendered  only  a  lukewarm  assist 
ance  to  those  who  were  struggling  against  Great  Britain. 

On  June  18,  1776,  a  Provincial  Conference,  with  Thomas 
McKean  as  president,  assembled  at  Carpenters'  Hall  in 
Philadelphia  and  continued  its  sittings  until  June  25,  when 
it  adjourned.  This  conference  consisted  of  ninety-seven 
delegates  representing  the  people  of  the  various  counties 
of  the  province.1  They  decided  that  in  considering  all 
questions  each  county  should  have  one  vote ;  that  they  ap 
proved  the  resolution  of  Congress  calling  for  a  new  consti 
tution  for  Pennsylvania;  that  "every  associator"  in  the 
province  should  be  entitled  to  vote  for  members  of  the 
convention,  provided  he  were  twenty-one  years  of  age  and 
had  resided  one  year  in  the  province  ;  provided  also  that  he 
had  paid  taxes,  and  should  take  oath  that  he  did  not  owe 
allegiance  to  Great  Britain,  They  recommended  that  the 
proposed  convention  should  consist  of  eight  delegates  from 
each  county,  Philadelphia  City  and  County  being  counted 
separately,  that  each  member  of  the  convention  should 
be  a  qualified  voter,  and  that  he  should  be  required  to 
renounce  allegiance  to  the  crown  and  assert  belief  in 
the  Holy  Trinity  and  the  inspiration  of  the  Scriptures. 
After  issuing  an  appeal  to  the  people  of  the  province,  and 

1 "  Proceedings  and  Minutes,"  pp.  35-45. 


12  The  Council  of  Censors. 

setting  July  8  as  the  day  for  the  new  election,  the  confer 
ence  adjourned. 

Such  was  the  authority  for  calling  the  convention.  It 
represented  the  will  of  the  people  expressed  in  a  way  for 
which  the  proprietary  government  of  Pennsylvania  had  not 
provided,  but  one  as  legitimate  as  that  by  which  the  Decla 
ration  of  Independence  had  been  adopted. 

Constitution-making  was  new  work  for  the  American 
colonists,  and  they  felt  their  way  slowly.  But  the  air  was 
full  of  suggestions.  It  was  proposed  that  the  Assembly 
choose  from  its  number  twenty  members  to  be  a  legislative 
council,  this  being  preferable  to  a  council  chosen  by  the 
people ;  that  no  alteration  should  be  made  in  the  "  Charter'' 
"  without  the  consent  of  two-thirds  of  the  people  testified 
by  voting  by  ballot."  It  was  further  suggested1  that  the 
members  form  a  plan  of  government,  submit  it  to  the 
people  by  printing  it  in  the  newspapers,  and  then  adjourn; 
that  the  people  should  choose  a  new  convention  which 
should  have  power  to  make  alterations  in  the  new  consti 
tution  or  confirm  it.  Another  writer  appeals  to  the  people 
on  the  necessity  of  framing  a  new  constitution,  cites  the 
governments  of  Greece  and  Rome  as  examples,  says  that 
this  province  is  worse  off  than  the  other  colonies  in  that 
the  "  House  of  Assembly  is  a  part  of  that  power  from  which 
we  are  trying  to  break  away,"  and  that  it  is  disqualified  for 
business.  Daniel  Roberdeau  added  the  protests,  for  similar 
reasons,  of  the  "  inhabitants  of  the  city  and  liberties  of 
Philadelphia."2  In  Philadelphia  and  adjacent  counties, 
however,  a  remonstrance  against  a  new  government  was 
framed,  and  signed  by  six  thousand  names.3  "  A  Freeman" 
in  a  later  paper4  asserts  that  the  remonstrance  does  not 
represent  the  people  of  the  province,  and  that  the  protesters 
have  no  desire  to  disturb  the  power  of  the  Assembly,  but 


1  Pennsylvania  Evening  Post,  No.  232,  July  16,  1776. 

2  Ibid.,  No.  208,  May  21,  1776. 

3  Ibid.,  No.  216,  June  8,  1776. 

4  Ibid.,  No.  217,  June  11,  1776. 


The  Council  of  Censors.  13 

to  frame  a  constitution,  a  work  which  the  Assembly  could 
not  do. 

Suggestions  were  made  not  only  as  to  framing  a  plan  of 
government,  but  as  to  keeping  it  in  order.  There  seemed 
to  be  a  desire  to  adopt  a  plan  whereby  the  people  should 
not  only  make  a  constitution,  but  to  them  should  be  con 
fided1  the  power  to  alter  and  amend  the  same.  John 
Adams's  suggestion 2  was  that  the  Legislature  devise  the 
methods  of  electing  representatives  "  as  in  Connecticut/7  or 
that  it  might  enlarge  the  period  for  which  they  should  be 
chosen  "  to  seven  years,  or  three  years,  or  for  life,  or  may 
make  any  other  alterations  which  the  society  shall  find  pro 
ductive  of  its  ease,  its  safety,  its  freedom,  or  in  one  word 
its  happiness." 

Another  writer  under  the  nom  de  guerre  of  Demophilus 
may  perhaps  be  fairly  regarded  as  having  made  the  direct 
preliminary  suggestion  for  the  Council  of  Censors.  He 
wrote  as  follows  : 3 

"  Probably  a  decennial  meeting  of  delegates  to  examine 
the  state  of  the  constitution  and  conduct  of  the  government 
would  not  be  an  imprudent  provision  for  keeping  the  con 
stitution  in  health  and  vigor,  by  having  an  opportunity  to 
see  that  it  did  not  depart  from  its  first  principles.  This 
would  be  effectually  holding  the  supreme  power  in  its  only 
safe  repository,  the  hands  of  the  people" 

The  election  of  delegates  took  place  July  8.  The  con 
servatives  took  little  or  no  part  in  this  election,  and  the 
result  was  that  the  party  in  favor  of  a  more  democratic  gov 
ernment  were  in  a  large  majority.4 

On  July  16  the  delegates  met,  organized,  and  made  the 

1  Pennsylvania  Evening  Post,  No.  217,  June  11,  1776. 

2 "  Thoughts  on  Government,  Applicable  to  the  Present  State  of  the 
American  Colonies,  Philadelphia,  1776:  Printed  by  John  Dunlap." 
John  Adams's  "  Works,"  Vol.  IV.  p.  197. 

3  "The  Genuine  Principles  of  the  Ancient  Saxon  and  English  Con 
stitution,  Philadelphia:   Printed  and   sold  by  Robert  Bell,  in  Third 
Street,  MDCCLXXVL,"  p.  38. 

4  Marshall's  "  Diary,"  p.  83.     Attention  is  called  to  this  passage  by 
Mr.  P.  L.  Ford  in  the  "Political  Science  Quarterly,"  Vol.  X.,  1895. 


14  The  Council  of  Censors. 

required  profession  of  political  faith,1  renouncing  all  alle 
giance  to  the  British  crown,  declaring  faith  in  the  Holy 
Trinity,  and  pledging  themselves  "  to  establish  and  support 
a  government  in  this  province  on  the  authority  of  the 
people  only."  2  Benjamin  Franklin  was  elected  president, 
and  after  electing  the  other  necessary  officers  and  clerks  the 
convention  was  ready  for  business. 

On  July  18  a  committee  was  appointed  to  bring  in  "  an 
essay"  for  a  frame  of  government ;  an  addition  to  it  was 
made  July  25,  when  it  stood  as  follows:  Owen  Biddle, 
Colonel  Bull,  Eeverend  William  Van  Home,  John  Jacobs, 
Colonel  Ross,  Colonel  James  Smith,  Jonathan  Hoge,  Jacob 
Morgan,  Colonel  Stroud,  Colonel  Thomas  Smith,  Robert 
Martin,  Colonel  Timothy  Matlack,  James  Cannon,  Colonel 
Potter,  David  Rittenhouse,  Robert  Whitehill,  and  Bertram 
Galbreath.3  On  July  25  the  convention  endorsed  the  Decla 
ration  of  Independence  and  pledged  themselves  to  "  support 
and  maintain  the  freedom  and  independence  of  this  and  the 
other  United  States  of  America  at  the  utmost  risk  of  "  their 
lives  and  fortunes.4 

On  September  28  the  frame  of  government  was  con 
firmed  and  ratified  by  the  convention  in  a  declaration  in 
which  were  these  words  : 5 

"We  the  representatives  of  the  freemen  of  Pennsylvania,  in  general 
convention  met  for  the  express  purpose  of  framing  such  a  government  .  .  . 
do,  by  virtue  of  the  authority  vested  in  us  by  our  constituents,  ordain, 
declare  and  establish  the  following  declaration  of  rights  and  frame  of 
government,  to  be  the  constitution  of  this  commonwealth  and  to  remain 
in  force  therein  forever  unaltered,  except  in  such  articles  as  shall  here 
after,  on  experience,  be  found  to  require  improvements,  and  which  shall 
by  the  same  authority  of  the  people,  fairly  delegated,  as  this  frame  of 
government  directs,  be  amended  or  improved  for  the  more  effectual  ob 
taining  and  securing  the  great  end  and  design  of  all  government  herein 
before  mentioned." 

The  constitution  contained  several  curious  provisions. 
It  provided  for  a  unicameral  Legislature,  and  vested  the 

1 "  Proceedings  and  Minutes,"  p.  46. 

2  Ibid.,  p.  39.        3  Ibid.,  pp.  48,  49.        *  Ibid.,  p.  49.        5  Ibid.,  p.  55. 


The  Council  of  Censors.  15 

executive  power  in  a  president  and  council.  It  provided 
for  amending  the  constitution  and  keeping  the  government 
under  the  control  of  the  people  by  a  Council  of  Censors. 
To  this  council  was  committed  the  initiative  in  setting  on 
foot  reforms  in  the  fundamental  law  and  certain  inquisi 
torial  powers  as  to  the  manner  in  which  public  officials  did 
their  duties.  The  council  was  also  to  see  that  taxes  and 
general  expenditures  were  justly  levied  and  discharged. 
The  provisions  respecting  it  were  those  which  have  been 
quoted  on  the  first  page  of  this  article  (Section  47  of  the 
constitution). 

Who  drew  up  this  frame  of  government,  and  to  whom 
are  we  indebted  for  Section  47  of  the  constitution,  the 
clause  treating  of  the  Council  of  Censors?  The  minutes 
and  proceedings  of  the  convention  throw  little  light  on  this 
question,  since  they  do  not  contain  the  debates  nor  a  full 
record  of  the  proceedings. 

The  committee  for  bringing  in  a  frame  of  government 
contained  some  eminent  men,  men  of  high  repute;  but  it 
is  probable  that  these  had  less  to  do  with  the  actual  work  of 
making  the  frame  of  government  than  some  who  were  less 
widely  and  favorably  known,  belonging  to  the  extremely 
radical  wing  of  the  popular  party. 

It  is  reasonably  certain  that  David  Bittenhouse  had 
little  or  no  part  in  it,1  and  the  same  authority  attributes 
but  little  of  the  work  to  Benjamin  Franklin,  although 
Timothy  Matlack  assured  Kichard  Bache  that  his  "vener 
able  father-in-law  was  one"  to  whom  the  "  Convention  paid 
the  highest  respect"  in  providing  for  a  Legislature  of  a 
single  branch.2 

The  Council  of  Censors  is  attributed  to  James  Cannon 
and  George  Bryan ; 3  George  Bryan  was  not  a  member  of 
the  convention,  however ;  hence  the  fact  that  he  is  charged 
with  its  authorship  in  connection  with  James  Cannon  shows 

1  Barton's  "  Life  of  David  Rittenhouse,"  p.  336,  note. 

2  Pennsylvania  Gazette,  March  31,  1779.      "  A  Candid  Examination 
of  the  Report  of  the  Minority,"  pp.  51,  52. 

8  Graydon's  "  Memoirs,"  pp.  285-288. 


16  The  Council  of  Censors. 

the  influences  that  worked  together  for  providing  this  radi 
cal  feature  of  the  Pennsylvania  constitution.  As  each  of 
these  men  is  charged  with  being  the  author1  of  the  con 
stitution,  one  may  reasonably  infer  that  it  grew  out  of  the 
combined  views  of  the  radical  wing  of  the  people's  party, 
in  which  were  Timothy  Matlack,  James  Cannon,  George 
Bryan,  Dr.  Thomas  Young,  and  Thomas  Paine.2  Two, 
Matlack  and  Cannon,  were  members  of  the  convention  and 
of  the  committee  for  drawing  up  a  frame  of  government; 
and  the  fact  that  George  Bryan,  an  outsider,  is  associ 
ated  with  it  leads  one  to  infer  that  the  views  of  the  entire 
group  found  expression,  in  a  measure,  in  the  frame  of  gov 
ernment. 

James  Cannon  was  a  Scotchman,  came  to  Philadelphia 
in  1765,  was  a  tutor,  and  later  a  professor  of  mathematics, 
in  the  College  of  Philadelphia,  was  active  in  the  "  Associ 
ates  of  Philadelphia,"  author  of  the  "  Cassandra"  letters, 
and  secretary  of  the  "  American  Manufactory."  He  died 
in  1782.3  One  contemporary  writer  calls  him  "  a  fanatical 
school-master,"  and  another  distinguishes  him  thus :  "  Of 
his  colleague,  Mr.  Cannon,  it  may  not  be  uncharitable  to 
presume,  that  having  little  knowledge  of  men,  and  that 
scholastic  predilection  for  the  antique  in  liberty,  which 

1  "Remarks  on  the  Powers  of  the  Council  of  Censors  in  Pennsyl 
vania,"  Philadelphia,  1784,  pp.  13,  a  pamphlet  in  the  library  of  the 
Historical  Society  of  Pennsylvania.     "  It  was  composed  in  a  hurry,  I 
a,m  told,  by  a  fanatical  school- master  while  the  wisest  and  best  men  in 
the  state  were  in  the  field." 

2  Marshall's  "  Remembrancer,"  p.  71,  March  15,   1776,  "  Past  five 
went  to  James  Cannon's.     Drank  coffee  with  Timothy  Matlack ;"  p.  83, 
May  25,  "  Thence  to  James  Cannon's  who  was  gone  out  with  Timothy 
Matlack  to  meet  sundry  county  members  at  Norrington ;"  ibid.,  May  30, 
"  Dr.  Young  came  there  [Cannon's]  to  see  me ;"  p.  84,  May  31,  "  Went 
from  there  to  James  Cannon's,  found  a  select  company  of  friends  of  the 
liberties  of  America ;"  p.  91,  July  3,  "  Near  nine  [P.M.]  went  to  meet 
the  Committee  of  Privates  with  others  at  Thome's  School  Room  where 
three  speakers ;  viz.,  James  Cannon,  Timothy  Matlack  [and]  Dr.  Young 
flourished  on  the  necessity  of  choosing  eight  persons  to  be  proposed  to 
the  people  for  our  Representatives  in  Convention." 

3  PENNA.  MAG.,  Vol.  III.  p.  198.    Graydon's  "Memoirs,"  pp.  285-287. 


The  Council  of  Censors.  17 

generally  falls  to  the  lot  of  a  pedagogue,  he  acted  accord 
ingly."1  This  certainly  gives  color  to  the  view  that  Mr. 
Cannon  may  have  had  in  mind  the  Council  of  Ephors  of  the 
Greeks  and  the  censors  of  the  Roman  constitution.  But 
the  coterie  to  which  he  belonged  may  have  been  familiar 
with  Kousseau's  views  and  he  may  have  taken  the  idea  from 
"  The  Social  Contract."2 

George  Bryan  was  an  Irishman,3  a  great  reader,  fluent 
talker,  intensely  opposed  "  to  whatever  was  English,"  and 
an  ardent  democrat.  His  interests  were  with  the  popular 
party,  for  with  them  lay  his  only  chances  for  a  public  career, 
since  by  birth,  training,  and  the  lack  of  property  he  was 
unacceptable  to  the  conservative  party.  Seven  years  later, 
when  elected  a  member  of  the  Council  of  Censors,  he  was 
attacked  and  derided  in  the  public  prints  of  Philadelphia, 
called  "Censor-General  of  Pennsylvania,"  and  " spem 
gregis." 4  "  Z"  in  an  open  letter  to  a  newspaper  exclaims, 
"Judge  Bryan  for  the  city  of  Philadelphia!  Hinc  illce 
lachrymce."  He  is  charged  with  being  poor,  with  being 
actuated  by  the  sentiments  of  neither  morals  nor  religion, 
and  with  violating  the  very  laws  he  has  taken  oath  to 
support.5 

Timothy  Matlack  was  a  Quaker  and  a  native  of  New 
Jersey.  He  was  a  member  of  the  Provincial  Conference  of 
June  18, 1776,  and  of  the  Constitutional  Convention ;  secre 
tary  of  state  most  of  the  time  till  March  25,  1783,  and 
member  of  the  Council  of  Safety  from  July,  1776,  to  March, 
1777.  He  was  a  fighting  Quaker,  and  was  disowned  by 
the  Society  for  the  part  he  took  in  the  Revolution.6 

Dr.  Young  had  lived  in  Boston  and  in  Albany,  was  ap- 

1  "  Remarks  on  the  Powers  of  the  Council  of  Censors"  (Philadelphia, 
1784),  p.  13 ;  Pennsylvania  Gazette,  No.  2802,  February  25,  1784 ;  Mar 
shall's  "  Diary"  and  "  Remembrancer." 

1  Loc.  cit. 

3  Graydon's  "Memoirs,"  pp.  287,  288. 

4  Pennsylvania  Gazette,  No.  2829,  August  25,  1784. 

5  Ibid.,  No.  2782,  October  8,  1783. 

6  PENNA.  MAG.,  Vol.  IV.  p.  92,  Vol.  XVI.  p.  315. 


18  The  Council  of  Censors. 

pointed  a  surgeon  in  the  army,  and  the  following  year,  1776, 
urged  Vermont  to  adopt  the  Pennsylvania  constitution. 
Of  Thomas  Paine,  whose  letters,  subscrihed  "  Common 
Sense,"  appeared  frequently  in  the  Pennsylvania  papers,  it 
seems  unnecessary  to  speak. 

The  framers  of  the  constitution  evidently  intended  to 
build  principally  upon  new  lines  and  avoid  all  features  of 
the  proprietary  government  that  had  proved  objectionable.1 
They  retained  the  unicameral  Legislature  and  annual  elec 
tions,  but  provided  for  manhood  suffrage  based  on  the  pay 
ment  of  taxes  and  one  year's  residence.2  The  executive 
power  was  vested  not  in  a  single  person,  but  in  a  president 
and  Executive  Council ;  all  bills  were  to  be  printed  before 
they  passed  to  a  third  reading,  for  the  consideration  of  the 
people,  and  then  they  were  to  go  to  the  next  session  of  the 
Legislature  for  passage.  Naturalization  was  made  easy,  one 
year's  residence  being  required  for  the  privilege  of  voting 
and  two  for  holding  office. 

The  provision  for  amending  the  constitution  early  gave 
rise  to  criticism.  Benjamin  Rush  in  a  letter  to  General 
Wayne  (September  24,  177G)  expressed  the  feeling  that  the 
constitution  had  many  weaknesses,  and  complained  that  the 
governor  and  council  had  no  veto  power,  but  hoped  the 
Council  of  Censors  would  remedy  this  in  seven  years.3 
Even  one  year  later  Joseph  Reed  in  a  letter  to  the  General 
Council  of  Pennsylvania  lamented  "  that  the  constitution 
has  not  provided  a  more  adequate  and  earlier  mode  of  im 
proving  what  is  right,  and  amending  what  is  wrong."4 
He  regarded  this  as  a  weakness,  thought  seven  years  too 
long  to  wait  for  needed  changes,  and  that  the  result  would 
be  either  "  spiritless  languor"  or  "  convulsion." 

On  September  28  the  convention  completed   its  labors 

1  Letter  of  Thomas  Smith  to  Arthur  St.  Glair,  "  St.  Glair  Papers," 
Vol.  I.  p.  222. 

2 "  Proceedings  and  Minutes,"  pp.  54-66 ;  "  St.  Glair  Papers,"  Vol. 
I.  p.  272. 

3  Stille's  "Major-General  Wayne  and  the  Pennsylvania  Line,"  p.  40. 

4  "  Life  and  Correspondence  of  Joseph  Eeed,"  Vol.  I.  p.  302. 


Tlie  Council  of  Censors.  19 

and  disbanded.1  The  constitution  was  not  ratified  by  the 
people.  Fears  were  entertained  of  Howe's  invasion,  and 
hence  it  was  next  to  impossible  to  place  the  instrument  in 
proper  form  before  the  people  for  their  consideration. 

V.  PENNSYLVANIA  :   THE  INAUGURATION   OF  THE  CONSTITU 
TION. 

On  October  17  a  caucus  was  held2  for  the  purpose  of 
"  devising  methods  for  setting  aside  sundry  improper  and 
unconstitutional  rules  laid  down  by  the  late  convention  in 
what  they  call  their  Plan  or  Frame  of  Government." 
After  some  deliberation,  and  agreeing  to  suggest  some 
changes  and  present  them  in  print  for  the  consideration  of 
the  people  of  the  State,  it  was  decided  to  hold  a  general 
meeting  in  the  State-House  yard  the  following  Monday 
afternoon,  October  21.  About  fifteen  hundred  persons 
were  present,  Colonel  Bayard  presiding.  The  speakers 
opposed  to  the  late  convention  were  Colonel  McKean  and 
John  Dickinson ;  in  its  favor,  James  Cannon,  Timothy 
Matlack,  Dr.  Young,  and  Colonel  Smith,  of  York  County.3 
An  adjournment  was  taken  at  night  to  the  following  day. 
At  this  adjourned  meeting  the  resolves  for  changing  the 
new  government  were  carried  by  a  large  majority. 

The  result  of  this  meeting  was  the  formulation  of  twenty- 
nine  specific  objections  to  the  frame  of  government.  "  It 
is  the  sense  of  this  meeting  that  the  people  are  generally 
and  greatly  dissatisfied  with  the  said  constitution."  Four 
specific  resolutions  were  made  with  reference  to  the  matter 
of  amending  the  constitution.  In  effect  they  were  that  the 
amending  of  the  constitution  was  committed  to  a  Council  of 
Censors,  and  that  it  required  a  two-thirds  vote  of  that  body 
to  effect  a  change  in  the  constitution ;  that  seven  years  must 
elapse  before  such  amendments  could  be  made,  and  that  this 
was  a  violation  of  the  rights  of  the  freemen  of  the  State ; 
that  it  is  the  sense  of  the  meeting  that  the  people  are  greatly 

1  "  Proceedings  and  Minutes." 

2  Marshall's  "  Diary,"  p.  97.  3  Ibid. 


20  The  Council  of  Censors. 

dissatisfied  with  the  constitution ;  that  the  Assembly  ought 
to  have  full  power  to  make  needed  changes  in  the  constitu 
tion;  and  that  these  changes  should  be  submitted  to  the 
people  for  their  consideration  before  they  are  finally  passed 
upon.1 

Efforts  were  made  to  reach  the  people  of  the  different 
counties2  to  secure  their  concurrence  in  the  proceedings 
which  resulted  in  the  condemnation  of  so  many  features  of 
the  constitution.  At  the  election  the  conservatives  took 
little  or  no  part,  and  the  friends  of  the  constitution  thereby 
had  a  majority.3  But  when  the  Legislature  assembled  (No 
vember  28)  it  was  found  that  the  minority  opposed  to  the 
constitution  was  large  enough  to  prevent  the  transaction  of 
business ;  and  matters  were  at  a  stand-still  when  Congress, 
fearing  the  appearance  of  the  British  in  Pennsylvania, 
threatened  to  assume  the  reins  of  government  for  Penn 
sylvania  if  the  Assembly  did  not  proceed  with  business. 

At  this  point  John  Dickinson,  member  from  Philadelphia, 
proposed  to  assist  in  organizing  the  government  and  doing 
business,  provided  that  the  Assembly  would  agree  to  a 
measure  seeking  to  call  a  convention  to  revise  the  objection 
able  features  of  the  constitution.  His  proposition  was  not 
accepted  and  he  resigned.4  The  Assembly  adjourned  De 
cember  14  and  did  not  come  together  until  January  13 ;  but 
no  business  could  be  done.  The  new  government  was  not 
organized  until  March  4r  when  Thomas  Wharton,  Jr.,  was 
elected  president  and  George  Bryan  vice-president  of  the 
Supreme  Executive  Council.  The  inauguration  ceremonies 
took  place  March  5,  and  then  the  government  of  Pennsyl 
vania  under  the  new  constitution  was  ready  for  business.5 

Mr.  Wharton,  the  president  of  the  Supreme  Executive 
Council,  felt  that  the  constitution  was  not  all  that  it  should 

1  Pennsylvania  Evening  Post,  No.  274,  October  22, 1776. 
1  Marshall's  "  Diary,"  p.  99. 

3  Stille's  "  John  Dickinson,"  Vol.  I.  p.  208 ;  Marshall's  "  Diary,"  p.  103. 
4 "  Thomas  Wharton,  Jr.,"  by  Anne  H.  Wharton,   PENNA.  MAG., 
Vol.  V. 

5  PENNA.  MAO.,  Vol.  V.  pp.  437-439. 


The  Council  of  Censors.  21 

be ;  but  he  thought  it  wiser  to  proceed  with  it,  and  do  the 
best  he  could,  rather  than  leave  Pennsylvania  with  no  gov 
ernment  when  she  was  so  hard  pressed  by  an  enemy  in  an 
adjoining  State  and  by  dissension  among  her  own  people.1 

VI.  PENNSYLVANIA  :   THE  NEW  CONSTITUTION  AND  -ITS 
ADMINISTRATION,  1776-1783. 

The  constitution  of  Pennsylvania  was  launched  upon  a 
stormy  sea.  Howe  and  his  army  threatened  to  invade  the 
State,  and  the  political  dissension  added  to  the  confusion. 
The  political  factions  seemed  to  subdivide  on  religious 
lines.2  The  Whigs  divided :  some  wanted  to  revise  the 
constitution,  while  others  wanted  it  kept  as  it  was  framed.3 
The  laws  were  disregarded.  The  trouble  "  brought  the 
dregs  to  the  top/' 

The  influence  of  Cannon,  Matlack,  and  Dr.  Young  was 
still  felt.  In  the  opinion  of  their  opponents,  they  held 
"  back  the  strength  of  the  State  by  urging  the  execution  of 
their  rascally  Government  in  preference  to  supporting 
measures  for  repelling  the  common  enemy."4 

The  two  chief  points  of  attack  in  the  constitution  were 
the  Legislature,  with  its  single  House,  and  the  method  of 
amending.  The  new  Legislature  was  called  a  "  mob  gov 
ernment;"  it  was  believed  to  appeal  to  the  passions  and 
interests  of  its  supporters.5  Joseph  Reed,  president  of  the 
Supreme  Executive  Council  in  1778,  felt  that  the  method 
of  amending  was  a  weakness  of  the  constitution,  and  par 
ticularly  because  of  the  seven-year  time  limit.6 

Richard  Bache,   Benjamin    Franklin's    son-in-law,  pre- 

1  He  was  elected  councillor  by  only  fourteen  votes  out  of  six  thousand 
voters.     "Kemarks  on  Powers  of  Council  of  Censors,"  Pennsylvania  Ga 
zette,  No.  2802,  February  25,  1784. 

2  James  Allen's  "  Diary,"  February  17, 1777 ;  PENNA.  MAG.,  Vol.  IX. 
p.  279. 

3  Ibid.,  June  6,  1777 ;  PENNA.  MAG.,  Vol.  IX.  pp.  282,  283. 

4  Stille's  "  Wayne,"  p.  68 ;  letter  of  Dr.  B.  Rush  to  General  Wayne. 

5  Ibid.,  p.  69. 

6  "Life  and  Correspondence  of  Joseph  Reed,"  Vol.  I.  p.  302. 


22  The  Council  of  Censors. 

sented  two  petitions  for  having  the  constitution  amended. 
The  first  he  offered  in  June,  1777,  in  his  capacity  of  chair 
man  of  the  Board  of  War,1  and  the  second  was  addressed 
to  the  citizens  of  Pennsylvania,  and  purported  to  come  from 
the  members  of  the  Kepublican  Society,  Eichard  Bache, 
chairman.  Among  the  eighty-five  signatures  were  those 
of  George  Clymer,  Benjamin  Rush,  Robert  Morris,  arid 
Ephraim  Blaine.  Their  petition  specified,  as  among  the  ob 
jectionable  features,  the  single  Legislature  and  the  Council 
of  Censors,  suggested  a  second  legislative  House,  denied 
that  it  was  a  "  House  of  Lords,"  because  it  would  be  elected 
by  the  people,  and  set  forth  that  a  Legislature  of  two  Houses 
would  not  be  composed  of  two  orders  of  men,  as  the  Roman 
government  was.  Their  views  of  the  censors  may  be  best 
expressed  by  quoting  their  language  : 

"What  shall  we  say  of  the  Council  of  Censors?  Here  indeed  is  a 
novelty  of  the  most  dangerous  and  alarming  kind. 

"  Our  constitution-makers,  not  satisfied  with  the  habitual  despotism 
of  a  single  and  uncontrouled  Legislature,  have  appointed  stated  seasons 
for  extraordinary  efforts  of  lawless  power. 

"  They  have  instituted  a  jubilee  of  tyranny  to  be  celebrated  at  the  end 
of  every  seven  years.  Glorious  period !  When  the  foundations  of  gov 
ernment  shall  be  torn  up  I  When  anarchy  and  licentiousness  and  force 
shall  roam  unawed  and  unrestrained !  When  there  shall  be  no  fixed  laws 
to  which  you  can  appeal  for  the  justification  of  your  conduct !  When 
there  shall  be  no  courts  to  which  you  can  have  recourse  for  protection ! 
When  trials  by  jury,  those  odious  obstructions  that  lie  in  the  way  of 
tyrants,  shall  be  happily  removed ! 

"  Are  you  pleased  with  the  prospect?  If  you  wish  not  to  feel  it  real 
ized  by  direful  experience,  lay  hold  eagerly  upon  the  present  opportunity 
which  is  offered  you  of  preventing  it,  by  voting  for  a  new  constitution 
to  abolish  this  part  of  the  constitution." 2 

The  Legislature  so  far  yielded  to  the  demands  of  the 
petitioners  that,  on  June  17,  1777,  it  voted  to  ascertain  the 
wishes  of  the  people  as  to  calling  a  new  convention.3  This 
measure  failed,  however,  in  consequence  of  Howe's  invasion. 

1  "  Pennsylvania  Archives,"  Vol.  I.  p.  54. 

2  Pennsylvania  Gazette,  No.  2545,  March  24,  1779. 

3  "  Proceedings  and  Minutes,"  p.  111. 


The  Council  of  Censors.  23 

On  November  28, 1778,  a  resolution  passed  the  Legislature 
which  gave  the  people  an  opportunity  of  voting,  on  March 
25  of  the  following  year,  for  or  against  a  convention ;  and 
it  specified  the  points  which  would  come  before  such  a  con 
vention,  among  them  the  abolition  of  the  Council  of  Cen 
sors.1  Following  this  movement  came  petitions  in  oppo 
sition  from  thirteen  thousand  inhabitants,  and  February  27, 
1779,  the  resolution  of  November  28,  1778,  was  rescinded 
by  a  vote  of  forty-seven  to  seven. 

From  this  time  to  the  meeting  of  the  Council  of  Censors 
in  1783  nothing  outside  of  newspaper  criticism  was  done  in 
the  direction  of  changing  the  constitution  of  Pennsylvania.2 

VII.  PENNSYLVANIA:    THE   COUNCIL  OP   CENSORS  AND  ITS 

WORK. 

On  November  13,  1783,  the  Council  of  Censors  provided 
for  in  Section  47  of  the  constitution  met  in  Philadelphia, 
and  organized  with  Frederick  A.  Muhlenberg  as  president.3 
On  November  19  a  committee,  consisting  of  Fitzsimmons, 
Smiley,  Irvine,  and  Reed,  was  appointed  to  consider  and 
report  as  to  whether  the  constitution  had  been  kept  in 
violate  in  every  part.  On  Thursday,  December  4,  the 
council  resolved  that  on  Monday,  the  15th,  it  would,  in 
committee  of  the  whole,  consider  whether  there  were  any 
need  of  amending  any  article  of  the  constitution.4  On 
December  17  it  was  ordered  that  the  committee  appointed 
to  see  whether  the  constitution  had  been  kept  inviolate 
should  inquire  as  to  whether  the  executive  and  legislative 
branches  of  the  government  had  gone  beyond  the  powers 
assigned  to  them  under  the  constitution.  On  January  1, 
1784,  the  council,  in  committee  of  the  whole,  Richard  Mc 
Allister  in  the  chair,  considered  the  defects  of  the  consti 
tution  and  as  to  whether  amendments  were  needed.  On 
January  2  the  report  of  the  committee  of  the  whole  was 

1  "  Proceedings  and  Minutes,"  p.  111. 

2  Ibid.,  p.  112;  "Life  and  Correspondence  of  Joseph  Reed,"  Vol.  I. 
pp.  46,  47. 

3  Ibid.,  p.  67.  4  Ibid. 


24  The  Council  of  Censors. 

read  to  the  House,  and  it  was  resolved  that  some  articles 
of  the  constitution  were  defective  and  absolutely  needed 
alteration  and  amendment.  At  this  time  a  committee, 
consisting  of  Miles,  Fitzsimmons,  St.  Glair,  Hartley,  and 
Arndt,  was  appointed  to  report  on  the  defective  articles 
of  the  constitution.  On  January  3  the  committee  was  in 
structed  to  report  the  alterations  and  amendments  that 
were  needed  in  the  constitution. 

Two  committees  reported  in  part  on  January  17,  and 
their  reports  were  ordered  to  lie  on  the  table, — the  com 
mittee  appointed  to  consider  whether  the  constitution  had 
been  preserved  inviolate  and  the  committee  appointed  to 
propose  needed  amendments.1  On  January  19  the  council 
considered  the  report  of  the  committee  on  the  defects  and 
alterations  of  the  constitution.  This  report  "  was  read  a 
second  time  by  paragraphs,  considered,  amended,  and 
adopted." 

Among  the  defects  suggested  were  these :  the  Legislature 
with  one  House,  the  executive  power  vested  in  a  president 
and  council,  the  dependence  of  the  judiciary  upon  the 
Legislature,  frequent  rotation  in  office,  and  unequal  repre 
sentation.  Among  the  changes  or  amendments  proposed 
were  these :  that  the  Legislature  consist  of  a  House  of  Kep- 
resentatives  and  a  legislative  council;  that  the  executive 
power  be  vested  in  a  governor,  who  should  have  a  veto 
power ;  that  the  Assembly  should  be  limited  to  one  hundred 
members  and  the  legislative  council  to  twenty-nine  mem 
bers;  that  judges  should  be  appointed  by  the  governor  to 
serve  during  good  behavior,  with  fixed  salaries,  and  that 
Section  47,  dealing  with  the  Council  of  Censors,  should  be 
omitted.  Each  amendment  proposed  by  the  committee 
was  passed  by  the  council  by  a  vote  of  twelve  favoring  and 
nine  opposing. 

At  this  point  a  controversy  arose  on  the  construction  to 

be  placed  on  the  report  of  the  committee  on  amendments.2 

The  minority  stoutly  maintained  that  it  involved  the  idea 

of  calling  a  convention  to  consider  the  amendments  pro- 

1 "  Proceedings  and  Minutes."  *  Ibid.,  pp.  77-82. 


The  Council  of  Censors.  25 

posed ;  and  that,  having  failed  to  obtain  a  two-thirds  vote 
of  the  Council  of  Censors,  no  appeal  could  be  made  to  the 
people  to  elect  delegates  to  a  Constitutional  Convention. 

In  their  dissentient  report  they  maintained  that  no  appeal 
could  be  made  to  the  people  without  violating  Section  47  of 
the  constitution,  reciting  the  history  of  the  action  of  the 
committee  on  amendments  from  its  appointment  on  January 
2  to  the  adoption  of  its  report  on  January  19 ;  that  changes 
should  not  be  lightly  made ;  that  at  the  end  of  every  seven 
years  such  changes  could  be  made,  and  that  this  council  had 
now  decided  that  no  change  at  present  is  necessary ;  that  if 
Section  47  is  now  violated,  other  dangerous  innovations 
may  be  made ;  that  the  present  constitution  was  made  in 
great  harmony ;  that  it  had  been  the  means  of  carrying  the 
State  through  great  crises,  and  if  it  should  be  changed  now 
the  responsibility  must  rest  with  the  majority;  that  the 
constitution  had  well  stood  the  test  of  trial ;  that  the  pro 
posed  changes  would  make  the  government  expensive ;  that 
if  Section  47  were  abolished,  no  method  of  changing  the 
constitution,  except  revolution,  would  be  left  to  the  people. 

On  January  21,  by  a  vote  of  thirteen  to  nine,  the  council 
resolved,  "  That  the  council  did  not  then  nor  at  any  time 
since  acquiesce  or  agree  in  the  opinion  that  the  vote  of 
January  2  determined  the  question  as  to  calling  a  conven 
tion.  "  *  The  majority  at  this  point  framed  and  adopted  an 
appeal  to  the  citizens  of  Pennsylvania,  and  adjourned  to 
meet  June  5. 

The  appeal  of  the  majority  set  forth  that  the  greatest 
question  before  the  council  was  the  constitution  itself;  that 
it  was  faulty  as  compared  with  the  constitutions  of  other 
States ;  that  a  majority  of  this  council,  but  not  two-thirds, 
desire  to  change  certain  parts  of  it  as  dangerous  to  the  lib 
erties  of  the  people ;  that  no  reasonable  motive  for  the 
opposition  to  these  measures  can  be  assigned ;  that  the  con 
stitution  was  framed  in  the  heat  of  party  passions,  when  a 
foreign  foe  menaced  the  State,  and  when  many  of  the  citi 
zens  were  absent  on  military  service ;  that  many  citizens 
1 "  Proceedings  and  Minutes,"  p.  80. 


26  The  Council  of  Censors. 

opposed  to  it  at  the  outset  submitted  to  it  only  on  the 
understanding  that  it  should  be  amended ;  that  seven  years 
had  elapsed  and  a  minority  that  does  not  represent  one-third 
of  the  people  binds  the  majority,  as  if  afraid  to  trust  the 
people  to  frame  a  government  for  themselves  ;  that  the  sov 
ereign  people  of  the  State  could  decide  whether  the  present 
constitution  was  agreeable  to  them ;  that  the  changes  pro 
posed  were  not  experiments,  but  had  been  well  tried  in 
sister  States;  that  as  the  amending  of  the  constitution  was 
the  most  important  matter  for  the  council  to  consider,  and 
as  the  minority  were  not  likely  to  yield,  an  adjournment 
should  be  taken  to  June  1. 

This  was  followed  by  the  appeal  of  the  minority  to  the 
people  of  the  State,  setting  forth  that  the  majority  of  the 
Council  of  Censors  had  appointed  a  committee  of  their  own 
to  prepare  and  bring  in  a  new  frame  of  government;  that 
time  had  been  wasted  and  needless  expense  involved  by 
the  obstinacy  of  the  small  majority  in  trying  to  have  a  new 
constitution  made  instead  of  considering  the  infractions  of 
the  old  one ;  that  the  single  executive  or  governor  would  be 
dangerous ;  that  the  minority  was  manfully  struggling  to 
preserve  the  present  constitution  ;  that  the  proposed  second 
branch  of  the  Legislature  was  in  effect  a  House  of  Lords, 
and  that  the  governor's  powers  should  not  be  extended  as 
proposed.1 

On  February  11  followed  "  A  Candid  Examination  of  the 
Address  of  the  Minority  by  One  of  the  Majority,"  wherein 
it  was  declared  that  because  ten  thought  one  way  and  twelve 
thought  another  way,  and  a  two-thirds  vote  is  necessary  for 
calling  a  convention,  therefore  the  minority  felt  that  the 
question  of  calling  a  convention  could  not  longer  be  an 
object  of  deliberation, — the  question  of  calling  a  convention 
never  really  came  before  the  council ;  it  was  agreed  gen 
erally  that  the  constitution  was  defective,  and  the  committee 
was  appointed  to  suggest  alterations  and  changes  that  were 
needed ;  it  was  denied  that  time  had  been  wasted ;  much 

1  Pennsylvania  Gazette,  No  2798,  January  28,  1784,  "Address  of 
the  Minority  of  the  Council  of  Censors  to  the  Citizens  of  Pennsylvania." 


The  Council  of  Censors.  27 

laborious  work  had  been  done,  and  in  regard  to  adjourn 
ment,  the  majority  wished  to  make  the  time  to  March  1, 
but  as  people  in  the  back  counties  wanted  to  be  at  home  in 
planting  time,  the  limit  was  set  for  June  1 ;  as  to  the 
charge  that  a  "  king"  or  "  governor"  was  proposed,  the  idea 
was  advanced  to  intrust  the  executive  with  power  and  then 
hold  him  responsible  for  it;  as  to  the  self-assumed  high 
moral  stand  taken  by  the  minority,  it  was  a  fact  that  six  of 
the  council  sat  in  judgment  on  their  own  acts ;  the  charge 
of  the  minority  that  the  proposed  second  House  of  the 
Legislature  would  be  a  House  of  Lords  had  no  foundation ; 
the  people  were  to  choose  a  legislative  council  from  the 
same  people  that  were  represented  in  the  lower  House,  and 
these  members  were  to  be  elected  by  the  same  voters ;  the 
minority  wilfully  misrepresented  the  purpose  of  the  majority; 
the  minority  offered  the  plan  of  electing  the  governor  by 
the  people ;  there  could  certainly  be  no  objection  to  intrust 
ing  the  election  of  the  chief  magistrate  to  voters  of  the 
State.  The  "  Candid  Examination"  goes  on  to  defend  the 
ideas  of  the  majority  respecting  the  veto  power,  the  appoint 
ing  power,  the  election  of  justices  of  the  peace,  etc. 

The  present  government  of  Pennsylvania,  it  declares,  is 
very  expensive  and  inefficient.  By  adopting  the  bicameral 
plan  the  interests  of  the  State  may  be  as  fairly  attended  to 
and  with  far  greater  economy  than  is  possible  at  present. 
The  alterations  proposed  by  the  majority  are  designed  to 
make  the  constitution  of  Pennsylvania  like  those  of  our 
neighboring  States.  They  have  a  governor  and  a  legislative 
branch  of  two  Houses  ;  but  none  of  them  contains  a  "  king" 
or  a  "House  of  Lords."  It  is  a  matter  of  the  utmost  im 
portance  that  a  convention  be  called  to  consider  the  amend 
ing  of  the  constitution.1 

This  "  Candid  Examination"  was  followed  by  "  Remarks 
on  the  Powers  of  the  Council  of  Censors,"  2  setting  forth 
that  the  council  did  not  equitably  represent  the  State,  and 
that,  as  constituted,  one-fifth  of  the  State  might  really  bind 

1  Pennsylvania  Gazette,  No.  2800,  February  11,  1784. 

2  Ibid.,  No.  2802,  February  25,  1784. 


28  The  Council  of  Censors. 

four-fifths ;  that  the  matter  of  inquiring  as  to  the  collection 
of  taxes  and  the  best  use  of  public  money  should  really  be 
done  by  the  Executive  Council  or  by  a  standing  committee 
of  the  General  Assembly ;  that  seven  years  is  too  long  to 
wait,  as  defaulters  might  escape ;  that  the  council  is  power 
less  to  compel  the  General  Assembly  to  repeal  unjust  laws  ; 
the  council  has  no  power  to  inflict  punishment  commensurate 
with  crimes  committed;  with  so  long  a  time  (seven  years) 
between  sessions,  persons  censured  may  be  dead,  or  may 
have  run  away ;  the  requirement  of  a  two-thirds  vote  of  the 
council  to  call  a  convention  to  amend  the  constitution  is 
absurd  and  tyrannical,  for  one-eighth  of  the  "State  as  repre 
sented  might  bind  seven-eighths;  that  it  is  difficult  to  get 
at  the  collective  opinions  of  a  community  so  represented ; 
the  censors  usurp  a  right  contrary  to  the  ninth  article  of 
the  Bill  of  Rights,  by  confining  periods  for  amending  the 
constitution  to  any  one  term;  reviewing  the  constitution 
once  in  seven  years  tends  to  create  a  septennial  convulsion — 
stability  would  thus  be  lost ;  if  the  people  are  happy,  they 
ought  not  to  be  disturbed  every  seven  years ;  if  unhappy, 
they  ought  not  to  wait  so  long;  that  the  Council  of  Censors 
is  absurd,  dangerous,  tyrannical,  and  unnecessary;  it  is  too 
expensive;  other  States  have  no  such  provision,  and  Penn 
sylvania's  position  among  them  is  lowered  by  this  provision. 

When  the  Council  of  Censors  resumed  its  duties  after  the 
adjournment,  it  proceeded  (August  16)  to  take  up  the  report 
of  the  committee  appointed  to  consider  whether  the  consti 
tution  had  been  preserved  inviolate  in  every  part,  a  report 
which  had  been  laid  on  the  table  on  January  17.1 

The  report  set  forth  that  in  view  of  the  insidious  attacks 
made  upon  the  constitution  it  was  the  belief  of  the  com 
mittee  that  the  instrument  in  question  is  clear  in  its  prin 
ciples,  accurate  in  its  forms,  consistent  in  its  several  parts, 
and  worthy  the  veneration  of  the  people  of  Pennsylvania. 
The  committee  then  proceeded  to  consider  infractions  of 
the  constitution  in  detail,  and  finally  resolved,  September 
16,  "  that  there  does  not  appear  to  this  council  an  absolute 
1  "Proceedings,"  pp.  83,  84. 


The  Council  of  Censors.  29 

necessity  to  call  a  convention  to  alter  or  explain  or  amend 
the  constitution."  *  The  report  was  adopted  by  a  vote  of 
fourteen  to  eight,  showing  that  the  radical  party  was  now  in 
the  majority. 

That  this  vote  was  somewhat  indicative  of  the  sentiment 
of  the  State  on  this  question  one  may  judge  from  the  facts 
that  a  petition  of  eighteen  thousand  citizens  had  heen  sent 
to  the  Council  of  Censors  requesting  them  not  to  change 
the  constitution,2  and  that  in  the  bye-election  held  in  Phila 
delphia  City  to  fill  the  vacancy  occasioned  by  the  resignation 
of  Miles,  a  conservative,  George  Bryan,  a  notorious  radical, 
had  been  elected. 

The  shifting  of  the  majority  vote  during  the  adjournment 
of  the  Council  of  Censors  from  the  conservative  to  the 
radical  wing  presents  several  interesting  features.  Both 
parties  had  issued  addresses ;  the  adherents  of  each  did  not 
lack  opportunity  for  knowing  what  was  at  stake.  It  was 
really  the  continuation  of  a  contest  which  had  been  going 
on  for  many  years.  The  conservatives  had  a  majority — but 
not  two-thirds — prior  to  adjournment;  but  at  this  time  the 
council  lacked  five  to  complete  its  quota.  After  the  ad 
journment  the  friends  of  the  constitution,  the  radical  party, 
polled  fourteen  votes  as  their  maximum  strength,  a  majority 
of  the  board.  In  the  mean  time  the  conservatives  had  lost 
Irvine,  Hartley,  and  Miles ;  while  the  radicals  had  gained 
Bryan,  Montgomery,  Potter,  and  McLene.  Only  once  in 
all  the  proceedings  did  a  member  vote  otherwise  than  on 
strict  party  lines,  and  in  this  instance  the  constitution  was 
not  involved. 

Whether  the  addresses  of  the  majority  and  the  minority 
had  any  effect  in  changing  the  sentiment  of  the  people 
would  be  difficult  to  determine.  It  is  certain,  however,  that 
everything  possible  was  done  to  arouse  public  sentiment  on 
both  sides.  Frederick  Muhlenberg,  in  the  early  summer  of 
1784,  admitted  that  his  side  was  beaten,  and  attributed  it 
to  the  "  blind  passion  and  mad  party  spirit  of  the  common 
crowd"  in  electing  George  Bryan.  He  felt  that  if  the  people 
1  "  Proceedings,"  p.  124.  2  Ibid.,  p.  123. 


30  The  Council  of  Censors. 

of  the  State  had  been  equitably  represented,  particularly  if 
the  "  intelligent  part  of  the  people"  could  have  had  a  voice, 
their  judgment  would  have  favored  the  amendments.1 

Joseph  Reed  felt  that  a  mistake  was  made  at  the  outset 
by  proposing  to  make  too  many  changes  in  the  constitution. 
His  view  was  that  if  only  a  few  changes  had  been  proposed, 
there  might  have  been  some  reasonable  hope  of  carrying 
a  proposition  for  a  Constitutional  Convention  through  the 
Council  of  Censors  by  the  requisite  two-thirds  vote.  A 
moderate  course  would  have  tended  to  conciliate,  and  would 
have  brought  some  measure  of  success  in  remedying  some 
of  the  defects  of  the  constitution, — for  it  certainly  had 
defects.2  George.  Bryan  came  in  for  a  series  of  attacks  in 
the  Pennsylvania  Gazette*  in  one  of  which  he  is  character 
ized  as  the  "  spem  gregis"  and  "  Censor-General  of  Pennsyl 
vania."4 

It  seems  that  the  cause  of  the  conservative  party  was 
really  hopeless  from  the  outset,  and  that  it  grew  more  so  as 
the  agitation  increased.  There  was  no  question  as  to  the 
fact  that  the  constitution  was  defective,  but  there  was  a  re 
luctance  to  making  radical  changes  ;  and,  moreover,  it  had 
not  then  occurred  to  the  people  as  a  whole  how  cumbrous 
their  machinery  was  for  changing  the  fundamental  law. 
Then,  too,  controversies  that  dated  back  to  the  time  when 
the  proprietary  government  was  in  power  were  not  entirely 
healed — all  these  elements  had  their  influence  in  keeping 
the  party  lines  rigid  in  the  Council  of  Censors. 

On  September  24  the  censors  made  their  address  to  the 
people  and  on  the  25th  adjourned.6  The  address  to  the 
people  set  forth  that  although  there  doubtless  were  defects 
in  the  constitution,  yet  it  had  been  decided  that  there  was 
no  absolute  necessity  for  calling  a  convention,  and  partly  for 
the  reason  that  the  censors  could  not  agree  upon  the 

1  PENNA.  MAG.,  Vol.  XII.  p.  199. 

2  Letter  of  Joseph  Keed  to  William  Bradford,  May  2, 1784,  "  Life  and 
Correspondence  of  Joseph  Keed,"  Vol.  II.  p.  411. 

3  Pennsylvania  Gazette,  Nos.  2829,  2830,  2831,  2833,  2834. 

4  Ibid.,  No.  2829,  August  25,  1784.  5  "  Proceedings,"  p.  128. 


The  Council  of  Censors.  31 

changes  needed ;  that  the  censors  had  set  forth  in  detail 
the  infringements  upon  the  constitution  which  they  had 
observed  ;  that  they  regretted  the  lack  of  unanimity  in  the 
council  and  regarded  it  as  unfortunate  that  the  question  of 
calling  a  convention  should  have  come  before  the  censors 
so  early  in  their  sessions ;  and  that  the  censors  had  not  at 
tempted  to  interpret  the  constitution  further  than  to  ex 
plain  their  view  of  certain  sections  to  show  wherein  they 
had  been  violated.1 

This  address  was  approved  by  a  vote  of  twelve  to  nine, 
and  the  work  of  the  Council  of  Censors  of  Pennsylvania 
for  1783-84  was  ended. 

VIII.  PENNSYLVANIA:   THE  CONVENTION  OF  1789-90. 

As  the  Council  of  Censors  was  to  be  elected  once  in 
seven  years,  the  second  council  for  Pennsylvania  would  have 
been  elected  in  1790.  Following  closely  upon  the  heels  of 
the  Council  of  Censors  of  1783-84  came  the  discontent  with 
the  old  Confederation  and  the  framing  and  adoption  of  the 
Federal  Constitution.  Pennsylvania  ratified  this  instru 
ment,  which  provided  for  amendments  in  a  more  equitable 
manner  than  by  a  Council  of  Censors. 

The  change  in  sentiment  thus  evinced  bore  fruit  in  a 
proposition  presented  to  the  Legislature  on  March  24, 1789, 
to  appeal  to  the  people  for  their  judgment  as  to  calling  a 
Constitutional  Convention ;  if  they  concurred  in  this,  then 
a  convention  was  to  be  chosen.  The  House  passed  these 
resolutions  by  a  vote  of  forty-one  to  seventeen. 

A  dissentient  report  was  made  by  sixteen  members, 
among  whom  was  that  James  McLene  who  had,  as  a  mem 
ber  of  the  Council  of  Censors,  voted  to  preserve  the  in 
tegrity  of  the  constitution  in  1776.  Their  main  line  of 
argument  was  that  if  changes  were  to  be  made  they  should 
be  made  by  a  Council  of  Censors,  for  any  other  way  was 
not  in  accordance  with  the  constitution  and  might  lead  to 
a  revolution  ;  the  present  form  of  government  was  not  too 
expensive, — indeed,  not  as  expensive  as  those  of  sister  States ; 
1  "Proceedings,"  pp.  127,  128. 


32  The  Council  of  Censors. 

and,  while  it  might  be  shown  that  there  are  defects  in  our 
constitution,  it  should  be  replied  that  it  has  stood  the  test 
of  time;  but  if  it  were  to  be  amended  it  should  be  done  in 
the  way  provided  by  the  constitution.1 

On  September  15  of  the  same  year  the  General  Assembly 
in  committee  of  the  whole  considered  the  matter  of  calling 
a  convention  to  alter  and  amend  the  constitution,  and  re 
ported  to  the  House  in  favor  of  the  measure.  The  report 
set  forth  that  it  was  believed  that  the  people  desired  this, 
"  in  preference  to  the  mode  by  the  Council  of  Censors, 
which  was  not  only  unequal  and  unnecessarily  expensive, 
but  too  dilatory  to  produce  the  speedy  and  necessary  alter 
ations  which  the  late  change  in  the  political  union  and  the 
exigencies  of  the  State  required;"  that  the  Bill  of  Rights 
recognized  the  people  as  possessed  of  all  the  necessary 
powers  in  the  premises  ;  that  the  members  of  the  Assembly 
had  mixed  with  the  people  of  the  State  and  found  them  de 
sirous  to  have  a  convention  called ;  that  this  proceeding 
was  right  and  necessary.  The  report  recommended  that 
the  members  of  the  convention  be  elected  as  the  members 
of  the  Assembly  are  elected  and  upon  the  same  day ;  and 
the  suggestion  was  added  that  the  convention  should  meet, 
propose  the  needed  alterations  and  amendments,  submit 
them  to  the  people  for  their  consideration,  and  then  adjourn 
for  four  months  previous  to  the  completion  of  their  work.2 

One  member  objected  to  the  Assembly's  going  beyond 
its  powers  to  instruct  a  convention  as  to  any  details  of  its 
duties,  since  this  should  be  done  by  the  people  whom  it 
was  to  represent.  The  resolution  for  calling  a  convention 
was  passed  by  a  vote  of  thirty-nine  to  seventeen. 

Here,  again,  came  a  dissentient  report  by  ten  members, 
setting  forth  that  the  Assembly  had  no  right  to  call  a  con 
vention  ;  that  there  was  no  reason  for  such  a  measure ;  that 
when  a  recent  attempt  was  made  to  ascertain  the  sense  of 
the  people  as  to  such  a  measure,  they  were  very  pronounced 
in  opposing  it,  because  they  were  satisfied  with  the  present 
constitution ;  that  the  Executive  Council  had  not  been 
1 "  Proceedings,"  pp.  131-133.  2  Ibid.,  134  et  seg. 


The  Council  of  Censors.  33 

properly  consulted  as  to  the  measures  proposed ;  that  too 
little  time  was  given  the  people  to  prepare  for  such  a 
measure ;  and  that  this  order  partook  of  the  nature  of  a 
revolution. 

A  correspondent  of  the  Gazette,  in  April,  declared  that 
the  choice  of  the  State  was  the  result  of  the  sentiments  of 
her  citizens ;  that  the  Council  of  Censors  that  met  to  con 
sider  the  present  constitution  was  elected  under  the  same 
vicious  principle  upon  which  our  constitution  was  framed, 
"Each  county,  great  and  small,  had  the  same  number  of 
voters,  each  had  a  vote." l  The  people  of  Pennsylvania  had 
tested  the  Council  of  Censors  once  and  had  been  disap 
pointed,  and  for  a  long  time  no  opportunity  had  been  given 
the  people  to  express  their  desire  as  to  the  changing  of  our 
present  constitution. 

Benjamin  Rush,  who  had  opposed  the  constitution  in 
1777,  was  still  hostile  to  it,  and  urged  Timothy  Pickering 
to  accept  a  place  in  the  new  convention.  He  felt  that  one 
of  the  greatest  boons  to  Pennsylvania  would  be  a  conven 
tion  that  should  change  the  State  constitution  to  correspond 
more  fully  with  "  the  new  continental  wagon." 2  Albert  Gal- 
latin  felt  that  the  constitution  ought  to  be  changed,  but  he 
wanted  it  changed  in  the  legal  way,  through  the  censors. 
He  became,  however,  a  member  of  the  convention,  and  in 
after-years  spoke  in  high  terms  of  the  character  and  ability 
of  the  members.3  Charles  Biddle's  views  were  quite  like 
those  of  Mr.  Gallatin.4  There  was  evidently  a  general  feel 
ing  in  the  State  that  the  constitution  of  1776,  framed  in  the 
midst  of  war  and  confusion,  was  not  adequate  to  the  needs 
of  the  State.  The  political  judgment  of  Pennsylvania  had 
outgrown  it. 

The  convention  for  revising  the  constitution  met  at 
Philadelphia  on  November  24,  1789,  in  accordance  with 

1  Pennsylvania  Gazette,  April  29,  1789. 

2  Letter  of  Benjamin  Rush,  Pickering  and  Upham's  "  Life  of  Picker 
ing,"  Vol.  II.  p.  428. 

3  Adams's  "  Life  of  Gallatin,"  pp.  79-81. 

4  "  Autobiography  of  Charles  Biddle." 


34  The  Council  of  Censors. 

the  vote  of  the  General  Assembly ;  but,  no  quorum  being 
present,  it  adjourned  to  the  25th,  when  it  organized,  with 
Thomas  Mifflin  as  president.  On  December  21  the  com 
mittee  appointed  to  bring  in  a  draft  of  a  constitution  pre 
sented  a  report  embracing  substantially  the  points  which 
had  been  rejected  by  the  Council  of  Censors  in  1783-84. 
Among  these  were  the  bicameral  Legislature,  a  single 
executive  to  be  elected  by  the  people,  and  a  qualified  veto 
power  to  be  vested  in  the  governor. 

Article  IX.,  Section  II.,  contained  all  that  the  committee 
had  to  offer  on  the  subject  of  amending  tjie  constitution : l 

"  That  all  power  is  inherent  in  the  people,  and  all  free  governments 
are  founded  on  their  authority,  and  instituted  for  their  peace,  safety, 
and  happiness :  For  the  advancement  of  these  ends,  they  have,  at  all 
times,  an  unalienable  and  indefeasible  right  to  alter,  reform,  or  abolish 
their  government,  in  such  manner  as  they  may  think  proper." 

The  Council  of  Censors  was  ignored,  the  people  having 
evidently  become  wearied  with  so  unwieldy  a  piece  of  po 
litical  machinery,  and  the  more  so  because  its  weakness 
became  more  manifest  as  the  people  came  to  see  and  appre 
ciate  their  needs. 

The  reason  why  the  people  of  Pennsylvania  had  borne 
with  the  constitution  of  1776  and  the  Council  of  Censors — 
indeed,  their  very  origin — lay  in  the  fact  that  the  State  had 
been  for  years  divided  into  two  hostile  political  camps. 
The  censors  and  the  constitution  of  1776  were  the  means 
wrhereby  the  radical  party  hoped  to  keep  their  own  rights 
from  invasion  by  the  conservatives,  who  had  been  so 
powerful  in  the  proprietary  colony. 

The  Revolutionary  feelings  were  still  in  evidence  when 
the  Council  of  Censors  met  in  1783-84 ;  but  during  the  next 
seven  years  a  change  had  come.  The  Rousseau  views  which 
had  evidently  prompted  Paine,  Matlack,  and  Cannon  to 
their  work  had  quietly  yielded  to  the  milder  influence  of 
John  Locke.  The  Confederation  had  proved  to  be  a  failure. 
The  thirteen  independent  States  had  united  to  form  "  a  more 

perfect  union." 

^'Proceedings,"  p.  303. 


The  Council  of  Censors.  35 

The  United  States  had  ventured  to  trust  the  execution  of 
its  laws  to  a  single  executive  properly  checked  by  the  other 
departments  of  the  government.  Philadelphia  was  the  seat 
of  the  convention  in  which  this  work  was  done;  Pennsyl 
vania  was  the  Keystone  State ;  she  felt  the  changes  that  had 
come  about  in  the  other  commonwealths.  In  1789  the  peo 
ple  were  ready  to  move  forward,  and  the  new  constitution 
was  the  exponent  of  this  progress.  Enough  had  been  done 
when  it  was  declared  that  the  people  were  the  rightful  re 
positories  of  the  political  power  of  the  State,  and  that  they 
could  of  right  decide  the  times  and  the  manner  of  altering 
or  amending  their  fundamental  law. 

IX.  THE  SIGNIFICANCE  OF  THE  COUNCIL  OF  CENSORS  IN 
PENNSYLVANIA. 

Pennsylvania  enjoyed  a  unique  position  among  her  sister 
colonies  from  her  geographical  position  and  from  the  fact 
that  her  proprietary  government  continued  down  to  the 
Revolution,  a  fact  which  contributed  not  a  little  to  the 
political  bitterness  which  was  manifested  so  forcibly  and 
frequently  while  the  constitution  of  1776  was  in  force. 

This  constitution  was  a  step  into  the  darkness  of  experi 
ment.  There  were  no  models  of  popular  government  to  take 
pattern  by;  hence  the  models  of  Greece  and  Rome  were 
studied  in  the  light  of  Locke,  Montesquieu,  and  Rousseau. 

The  fatal  stumbling-block  seems  to  have  been  found  in  the 
plan  for  giving  the  people  supervision  over  their  government 
and  its  officials. 

The  constitution  of  1776  seems  to  have  been  the  advance 
wave  of  the  levelling  influence  of  the  American  Revolution. 
The  social  and  political  condition  of  Pennsylvania  was  ready 
for  this  change,  and  the  commotion  which  followed  the 
making  of  the  new  constitution  was  simply  a  preparation 
for  the  more  stable  form  which  was  sure  to  follow. 

The  Council  of  Censors  of  1783-84  was  elected,  and  its 
work  was  given  to  the  people,  but  the  constitution  was  con 
tinued.  Faulty  and  defective  as  it  was,  the  people  of  Penn 
sylvania  were  not  to  be  dragooned  into  more  radical  changes. 


36  The  Council  of  Censors. 

Within  the  following  seven  years  thirteen  independent 
republics  laid  aside  the  treaty  or  Confederation  by  which 
they  were  loosely  held  together  and  merged  their  sovereignty 
in  a  national  government. 

The  fundamental  law  of  this  nation  provided  a  means 
always  accessible  to  the  people  for  altering  or  amending  this 
great  instrument,  which  was  the  product  of  the  ablest  states 
manship  of  the  States.  While  the  influence  of  this  great 
work  was  fresh  in  the  minds  of  the  people  of  Pennsylvania, 
and  just  on  the  eve  of  the  election  of  a  second  Council  of 
Censors,  her  General  Assembly  touched*  the  pulse  of  public 
sentiment  and,  finding  the  people  ready  for  the  movement, 
called  a  convention  which  framed  a  constitution  on  better 
lines  and  with  better  adjusted  political  machinery.  In  the 
executive,  in  the  Legislature,  and  in  the  method  of  amending 
the  constitution  the  principal  changes  were  made ;  and  the 
great  principle  was  laid  down,  and  has  ever  since  been  main 
tained,  that  it  is  in  the  province  of  the  people  of  the  State  to 
decide  the  time  and  the  method  of  changing  the  fundamental 
law  in  a  popular  government. 


THE  COUNCIL  OF  CENSORS  OF  VERMONT.  ( ') 


The  territory  now  included  in  the  state  of  Vermont 
was  originally  claimed  by  New  Hampshire  and  New  York. 

In  response  to  a  letter  from  Governor  Wentworth  of 
New  Hampshire  to  Governor  Clinton  of  New  York,  rela 
tive  to  determining  the  boundary  between  New  York  and 
New  Hampshire  west  of  the  Connecticut  River,  the  letter 
dated  at  Portsmouth,  N.  IL,  November  17,  1749,  Governor 
Clinton  replied  that  the  province  of  New  York  was  boun 
ded  on  the  east  by  the  Connecticut  Eiver  agreeably  to  the 
grant  made  by  Charles  II.  of  England  to  his  brother  James, 
Duke  of  York.  (8) 

On  January  3d,  of  this  year,  Governor  Wentworth  gave 
a  grant  of  a  township  in  the  south-western  part  of  what  is 
now  Vermont.  This  was  named  Bennington,  and  was  the 
earliest  grant  made  by  New  Hampshire.  Between  this 
time  and  December,  170-1,  one  hundred  and  thirty  town 
grants  and  six  private  grants  had  been  made  by  New 
Hampshire.  New  York  did  not  recognize  the  legality  of 
these  grants  and  efforts  were  made  to  place  and  retain  them 
under  the  power  of  New  York.  Governor  Tryon  offered 
rewards  for  the  arrest  of  Ethan  Allen  and  others,  because 
of  their  prominence  in  resisting  the  claims  of  New  York. 
The  Vermonters  at  once  banded  together  to  protect  the 
towns  of  the  New  Hampshire  Grants  from  interference 
on  the  part  of  New  York. 

In  March,  1775,  occurred  the  riot  at  Westminster,  and 
after  this  the  towns  east  of  the  Green  Mountains  united  in 

(' )  Tiie  portion  of  this  paper  which  follows  was  read  before  the 
Vermont  Historical  Society  at  Montpelier  on  October  18,  1898,  and 
is  here  reprinted  from  the  Proceedings  of  that  Society,  by  its  kind 
permission. 

(-)    Slade,  Vermont  State  Papers,  p.  9,  et  seq. 


38  The  Council  of  Censors. 

resistance  to  the  claims  of  New  York,  and  at  a  meeting  in 
Westminster,  April  1],  1775,  a  resolution  to  this  effect  was 
adopted.  (') 

Before  July  4,  1776,  the  citizens  of  the  New  Hamp 
shire  Grants  were  mostly  loyal  to  Great  Britain  ;  after  this 
date  they  claimed  to  be  independent,  and  called  a  meeting 
of  citizens  at  Dorset,  July  21.  An  adjournment  was  taken 
to  September  25,  when  delegates  numbering  fifty-one  and 
representing  thirty-five  towns,  met  at  Cephas  Kent's  in  Dor 
set^2)  At  this  meeting  it  was  resolved  "  to  declare  the  New 
Hampshire  Grants  a  free  and  separate  district."  This 
vote  passed  without  a  dissenting  voice.  The  meeting 
further  resolved  as  follows  :  (a) 

"  We,  the  subscribers,  inhabitants  of  that  district  of 
land  commonly  called  and  known  by  the  name  of  New 
Hampshire  Grants,  being  legally  delegated  and  authorized 
to  transact  the  public  and  political  affairs  of  the  aforesaid 
district  for  ourselves  and  constituents,  do  solemnly  covenant 
and  engage,  that,  for  the  time  being,  we  will  strictly  and 
religiously  adhere  to  the  several  resolves  of  this  or  a  future 
convention,  constituted  on  said  district  by  the  free  voice  of 
the  friends  to  American  liberties,  which  shall  not  be  repug 
nant  to  the  resolves  of  the  honorable  the  Continental  Con 
gress  relative  to  the  cause  of  America." 

This  Convention  adjourned  to  meet  at  Westminster 
January  15,  1777.  At  this  meeting  it  was  voted,  "That 
the  district  of  territory  comprehending  and  usually  known 
by  the  name  and  description  of  the  New  Hampshire 
grants,"  be  a  new  and  separate  state,  "  forever  hereafter  to 
be  called,  known  and  distinguished  by  the  name  of  New 
Connecticut."  (4)  On  January  22,  the  Convention  adjourned 
to  meet  at  Windsor  the  first  Wednesday  in  June.(5) 

(')    Slade,  State  Papers,  p.  60. 
(-)    State  Papers,  p.  66. 

(3)  State  Papers,  p.  67. 

(4)  See  Hiland  Hall's  Early  Vermont,  pp.  239,  497-500. 

(5)  State  Papers,  p.  79. 


The  Council  of  Censors.  39 

This  Convention  met  according  to  adjournment  on  the 
iirst  Wednesday  in  June  and  voted  that  a  committee  be 
appointed  to  draft  a  constitution;  "and  a  resolution  was 
adopted,  recommending  to  each  town  to  elect  delegates  to 
meet  in  convention,  at  Windsor,  on  the  second  day  of  July 
following."  July  2,  the  delegates  came  together  and  pro 
ceeded  to  consider  the  draft  of  the  constitution  proposed. 
The  constitution  was  read  paragraph  by  paragraph  and 
adopted  without  referring  it  to  the  people  for  ratifica 
tion.  There  were  two  reasons  for  this  :  1,  It  was  definitely 
understood  by  the  towns  that  the  delegates  chosen  for  this 
convention  were  vested  with  all  necessary  powers  for  fram 
ing  a  constitution  ;  and,  2,  Burgoyne's  invasion  made  it 
impossible  to  call  the  citizens  together  for  purposes  of  rati 
fication.  Moreover,  Pennsylvania  had  adopted  a  constitu 
tion  the  previous  year  without  ratification,  and  besides,  the 
theory  of  popular  government  was  not  so  far  advanced  then 
as  to  disturb  public  judgment  over  such  an  omission,  and 
particularly  since  the  power  that  made,  was  able  to  unmake, 
the  constitution  at  will. 

In  this  Convention  it  was  voted  that  the  first  election, 
under  the  constitution  should  be  held  in  December,  1777, 
and  that  the  legislature  should  meet  at  Bennington  the  fol 
lowing  January. 

This  Convention  had  appointed  a  Committee  of  Safety 
as  a  part  of  its  work,  to  provide  for  the  defence  of  the 
State.  Ira  Allen,  who  was  to  have  the  constitution  printed 
at  Hartford,  Connecticut,  for  distribution  to  the  citizens  of 
Vermont  in  season  for  the  December  election,  was  unable 
to  carry  out  his  plans,  so  the  Committee  of  Safety  sum 
moned  the  Convention  to  meet  again  December  24,  1777.  (') 
The  Convention  met,  made  some  changes  in  the  constitu 
tion,  changed  the  date  of  the  new  election  to  the  first  Tues 
day  in  March,  1778,  and  voted  that  the  Legislature  assemble 

t1)   State  Papers,  p.  80. 


4:0  The   Council  of  Censors. 

the  second  Thursday  of  the  same  month  at  Windsor.  The 
Legislature  met  accordingly  in  Windsor,  adopted  the  Con 
stitution  and  proceeded  with  the  legislative  work  of  the 
State.  Bennington  was  the  only  town  in  the  State  that 
opposed  the  adoption  of  the  Constitution  without  its  being 
previously  ratified  by  the  people  ;  this  objection  was  drop 
ped. 

The  source  of  the  first  Vermont  Constitution  can  readily 
be  traced.  At  the  Westminster  Convention,  January  15, 
1777,  Dr.  Jonas  Fay,  Thomas  Chittenden,  Heman  Allen 
and  Reuben  Jones  brought  in  a  draft  of  a  petition  to  Con 
gress  relative  to  the  territory  of  Vermont,  based  on  her 
declaration  of  independence  and  the  free  action  of  her  citi 
zens  in  convention  assembled.  This  committee  went  to 
Philadelphia  and  presented  their  petition  to  Congress  ;  but 
in  the  meantime  they  fell  inQ  with  the  "red  republicans  " 
who  had  been  instrumental  in  drawing  up  the  draft  of 
the  Pennsylvania  Constitution  the  year  previous.  Dr. 
Thomas  Young,  James  Cannon,  and  Timothy  Matlack  were 
leaders  (2)  of  the  radicals  in  Pennsylvania,  and  Dr.  Young 
was  an  old  acquaintance  of  Ethan  Allen's  while  the  latter 
resided  in  Connecticut.  Dr.  Young  suggested  the  name  of 
Vermont  and  in  a  public  letter  dated  April  11,  1777,  and 
published  in  a  Philadelphia  newspaper,  he  urged  the  Ver- 
monters  to  adopt  a  State  organization  and  seek  admission 
to  Congress.  As  a  matter  of  fact  the  Constitution  of 
Vermont  was  an  exact  copy  of  that  of  Pennsylvania,  with  a 
few  minor  changes.  Among  its  provisions  was  that  of  pro 
viding  a  council  of  thirteen  censors  to  be  elected  once  in 
seven  years,  to  determine  whether  the  laws  were  duly  exe 
cuted,  whether  they  were  constitutional,  and  whether  there 
were  need  of  a  revision  of  the  Constitution.  This  section, 
Section  XLV.,  read  as  follows : 

(M     Ira  Allen's  History  of  Vermont,  p.  80. 

(2)     Hiland  Hall's  History  of  Vermont,  pp.  497-500. 


The  Council  of  Censors.  41 

"  In  order  that  the  freedom  of  this  commonwealth  may 
be  preserved  inviolate,  forever,  there  shall  be  chosen,  by 
ballot,  by  the  Freemen  of  this  State,  on  the  last  Wednesday 
in  March,  in  the  year  one  thousand  seven  hundred  and 
eighty-live,  and.  on  the  last  Wednesday  in  March,  in  every 
seven  years  thereafter,  thirteen  persons,  who  shall  be  chosen 
in  the  same  manner  the  Council  is  chosen — except  they  shall 
not  be  out  of  the  Council  or  General  Assembly — to  be  called 
the  Council  of  Censors  ;  who  shall  meet  together  on  the  first 
Wednesday  of  June  next  ensuing  their  election  ;  the  major 
ity  of  whom  shall  be  a  quorum  in  every  case,  except  as  to 
calling  a  Convention,  in  which  two-thirds  of  the  whole  num 
ber  elected  shall  agree  ;  and  whose  duty  it  shall  be  to 
enquire  whether  the  Constitution  has  been  preserved  in 
violate  in  every  part ;  and  whether  the  legislative  and  ex 
ecutive  branches  of  government  have  performed  their  duty 
as  guardians  of  the  people  ;  or  assumed  to  themselves,  or 
exercised,  other  or  greater  powers,  than  they  are  entitled  by 
the  Constitution. 

"  They  are  also  to  enquire  whether  the  public  taxes 
have  been  justly  laid  and  collected,  in  all  parts  of  this  Com 
monwealth — in  what  manner  the  public  monies  have  been 
disposed  of,  and  whether  the  laws  have  been  duly  executed. 

"  For  these  purposes  they  shall  have  power  to  send  for 
persons,  papers  and  records;  they  shall  have  authority  to 
pass  public  censures — to  order  impeachments,  and  to  recom 
mend  to  the  legislature  the  repealing  such  laws  as  appearto 
them  to  have  been  enacted  contrary  to  the  principles  of  the 
Constitution.  These  powers  they  shall  continue  to  have, 
for  and  during  the  space  of  one  year  from  the  day  of  their 
election,  and  no  longer.  The  said  Council  of  Censors  shall 
also  have  power  to  call  a  Convention,  to  meet  within  two 
years  after  their  sitting,  if  there  appears  to  them  an  abso 
lute  necessity  of  amending  any  article  of  this  Constitution 
which  may  be  defective — explaining  such  as  maybe  thought 


42  The  Council  of  Censors. 

not  clearly  expressed,  and  adding  such  as  are  necessary  for 
the  preservation  of  the  rights  and  happiness  of  the  people  ; 
but  the  articles  to  be  amended,  and  the  amendments  pro 
posed,  and  such  articles  as  are  proposed  to  be  added  or 
abolished,  shall  be  promulgated  at  least  six  months  before 
the  day  appointed  for  the  election  of  such  convention,  lor 
the  previous  consideration  of  the  people,  that  they  may  have 
an  opportunity  of  instructing  their  delegates  on  the  sub- 
ject."  (') 

The  Constitution  of  Vermont  was  launched  upon  a 
stormy  sea.  The  colonists  were  in  the  midst  of  a  war  for 
their  independence;  her  territory  had  already  been  invaded 
and  made  the  scene  of  battle.  Nor  was  this  all  her  trouble  ; 
for  New  York  was  pressing  her  claims  to  the  territory 
known  as  the  New  Hampshire  Grants. 

At  the  session  of  the  Legislature  held  in  Bennington 
on  February  11.  1779,  there  was  a  formal  ratification  of  the 
Constitution  and  a  declaration  that  this  instrument  with 
such  alterations  or  amendments  as  should  be  made  in  the 
future  should  be  "forever  considered, held,  and  maintained, 
as  part  of  the  laws  of  this  State."  (2)  At  the  June  session 
held  at  "Windsor  in  1782,  there  was  a  second  formal  rati 
fication  (3)  which  recognized  the  45th  section  of  the  Con 
stitution  as  providing  the  means  for  further  altering  or 
amending  the  Constitution. 

At  first  the  people  of  Vermont  seem  to  have  regarded 
the  Constitution  as  of  no  more  importance  than  an  ordinary 
act  of  the  legislature.(4)  That  the  importance  of  the  Con 
stitution  as  the  fundamental  law  of  the  State  was  a  matter 
of  growth  in  the  minds  of  the  people  of  Vermont  is  borne 
out  by  the  fact  that  it  was  not  until  November  2, 179t>,  that 

(')  Slade,  State  Papers,  p.  255. 

(2)  Slade,  State  Papers,  p.  288. 

(3)  Slade,  State  Papers,  p.  449. 

(4)  Judge  Chipman's  Memoirs  of  Thomas  Chittenden,  Chap. 


The   Council  of  Censors.  43 

the  legislature  declared  the  Constitution  to  be  the  "  supreme 
law  of  the  land."(') 

That  this  view  should  have  been  taken  seems  reason 
able  from  the  nature  of  the  case.  Here  was  an  independent 
community,  lately  under  an  exacting  monarchy,  with  its  in 
tegrity  threatened  by  the  demands  of  a  sister  commonwealth, 
now  attempting  to  govern  itself  by  its  own  laws.  The 
people  felt  their  way  until  their  constitutional  light  became 
bright  enough  for  them  to  proceed  with  a  full  measure  of 
conscious  strength. 

The   Earlier  Councils  of  Censors  and   Conventions, 
J 785- J 836. 

The  first  Council  of  Censors  met  in  1785  and  held  three 
sessions;  one  at  Norwich  in  June,  one  at  Windsor  in  Sep 
tember,  and  one  at  I>ennington  in  February,  1780.  (")  This 
Council  renewed  the  legislation  of  the  previous  seven  years, 
proposed  a  number  of  amendments  to  the  Constitution,  and 
voted  that  a  convention  should  be  called  to  consider  them. 

The  convention  met  at  Manchester  on  the  last  Thurs 
day  in  June,  178f>,  and  ratified  some  of  the  amendments 
proposed  by  the  Council.  (3)  Among  these  the  most  im 
portant  seem  to  be  these:  that  the  legislative,  executive,  and 
judiciary  departments  should  be  kept  distinct ;  that  the 
people  "by  their  legal  representatives"  have  the  sole  right 
of  governing  and  regulating  the  police  affairs  of  the  State  ; 
and  that  the  fourteenth  section  of  the  Frame  of  Government 
should  so  read  as  to  confer  upon  the  Governor  and  Council 
a  qualified  veto  power,  and  the  power  to  propose  amend 
ments  to  bills  passed  by  the  Assembly,  with  the  further 
provision  that  if  the  Assembly  should  not  concur  in  these 
amendments  then  the  Governor  and  Council  could  suspend 

(J)     Poore's  Charters  and  Constitutions,  p.  1875. 
(8)     Slade,  State  Papers,  p.  511. 

(3)  .Records  of  the  Governor  and  Council,  Vol.  I,  pp.  84-85. 
Chipman's  Memoirs  of  Thomas  Chittenden,  Chap.  VIII. 


44  The  Council  of  Censors. 

the  passage  of  these  bills  until  the  next  session  of  the  Legis 
lature.  (')  We  believe  this  to  have  been  the  first  instance  in 
constitutional  history  of  a  written  constitution  being  amended 
by  representatives  of  the  people  and  at  the  command  of  the 
people. 

Vermont  was  admitted  to  the  Union  by  the  Act  of 
Congress  of  March  6, 1791,  with  its  Constitution  as  it  had  been 
amended  by  the  first  Council  of  Censors  and  the  Manches 
ter  Convention  of  1786  and  ratified  (2)  by  the  state  legisla 
ture  of  1787.  Hitherto  Vermont  bad  enjoyed  the  unique 
distinction  of  being  an  independent  commonwealth,  bound 
to  the  Union  by  no  ties  save  those  of  patriotic  sympathy. 
She  had  established  and  maintained  a  government,  had  re 
sisted  invasion,  had  assisted  in  carrying  on  the  Revolution, 
and  bad  patiently  waited  for  the  opportunity  to  yield  her 
independence  to  the  end  that  she  might  enjoy  the  privileges 
and  share  the  burdens  of  the  federal  union. 

In  1792  another  Council  met  and  proposed  several 
radical  changes.  It  was  proposed  that  the  Legislature  should 
be  made  bi-cameral,  a  Senate  taking  the  place  of  the  "  Ex 
ecutive  Council";  each  town  was  to  have  one  representa 
tive  in  the  lower  house  provided  it  had  forty  families,  other 
wise  two  or  more  towns  together  having  forty  families  could 
send  one;  the  Senate  was  to  be  based  on  proportional  repre 
sentation  from  the  counties.  (3)  In  its  address  to  the  people, 
in  1792,  the  Council  said:  "In  examining  the  proceedings 
of  the  legislative  and  executive  departments  of  this  govern 
ment  during  the  last  septenary,  we  are  happy  to  find  no 
proceedings  which  we  judge  unconstitutional  or  deserving 

(!)  Mr.  Huse,  Revised  Laws  of  Vermont,  edition  of  1881,  p. 
57,  thinks  that  the  Council  may  be  said  practically  to  have  effected 
a  general  revision  of  the  Constitution  in  respect  to  details  and  expres 
sion. 

(8)  Governor  and  Council  of  Vermont,  Vol.  III.  p.  133.  Chip- 
man's  Memoirs  of  Thomas  Chittenden,  Chap.  V. 

(n)      Thompson's  Gazetteer,  p.  125;  Slade,  State  Papers, p.  545-6. 


T/ie   Council  of  Censors.  45 

of  censure.*'  (')  The  Convention  met  at  Windsor,  July  4-9, 
1793,  but  none  of  the  proposed  amendments  were  adopted. 
The  people  of  Vermont  were  slowr  to  adopt  the  recommend 
ations  of  the  Council  of  Censors.  They  had  followed  Penn 
sylvania  in  adopting  their  Constitution  with  its  single  legis 
lative  branch  and  Council  of  Censors.  Pennsylvania  had 
now  discarded  these  two  institutions,  but  conservative  Ver 
mont  held  steadily  to  her  adopted  plan. 

Even  at  this  early  day,  however,  an  idea  had  begun  to 
take  root  that  the  Council  of  Censors  was  not  worthy  of  the 
full  measure  of  confidence  which  it  seemed  to  possess  at 
first.  Dr.  Samuel  Williams,  writing  in  1806,  in  speaking 
of  this  body  declared  that  an  experience  of  thirty  years  had 
disappointed  the  people  as  to  the  benefits  derived  from  the 
Council  of  Censors.  He  complained  of  the  manner  of 
their  election,  that  it  was  liable  to  partisan  control,  that 
their  proceedings  were  often  characterized  by  ';  prejudice, 
partiality,  contracted  views  and  want  of  comprehension. 
The  assembly  often  pay  but  little  regard  to  their  decisions 
and  the  people  still  less."  He  added,  "  Time  and  experi 
ence  will  determine  what  is  wanted  in  this  part  of  our  Con 
stitution."  (2) 

The  third  Council  of  Censors  met  in  February,  1800, 
but  they  prepared  no  amendments  to  the  Constitution. 
They  recommended,  however,  that  the  Legislature  repeal 
the  act  of  October  6,  1796,  empowering  the  supreme  court 
judges  to  deprive  a  man  of  his  right  to  vote  "  for  any  evil 
action  which  shall  render  him  notoriously  scandalous."  (3) 
They  also  recommended  the  repeal  of  the  act  of  October 
25,  1797,  relating  to  the  support  of  the  gospel,  except  the 
first  and  last  sections,  as  contrary  to  the  third  section  of  the 
bill  of  rights  in  the  Constitution.  They  also  took  note  of 

(1)  Proceedings  of  Council  of    Censors,    Printed  by  Anthony 
Haswell  in  Rutland,  1792.     Bound  volume  in  State  Library,  Mont- 
pelier,  Vt. 

(2)  Williams'  History  of  Vermont,  II.,  pp.  400-401. 

(3)  Address  of  Council  of  Censors,  Vermont  State  Library,  p.  11. 


46  The  Council  of  Censors. 

a  matter  relative  to  a  sheriff's  charging  constructive  mile 
age  in  serving  court  papers.  The  case  is  not  without  inter 
est.  The  Council  of  Censors  ordered  the  Legislature  to 
impeach  William  Coley,  high  sheriff  of  Bennington  county, 
for  taking  illegal  fees  for  summoning  the  grand  and  petit 
jurors  to  serve  before  the  supreme  court  at  Manchester  at 
the  February  and  June  terms,  1798.  It  should  be  stated 
that  the  supreme  court  judges  had  approved  his  charges. 
The  Legislature  took  the  matter  up  and  October  26, 
1799,  went  into  a  committee  of  the  whole  to  consider  the 
question  set  forth  by  the  Council  of  Censors.  This  resulted 
in  the  appointment  of  a  committee  to  take  up  the  case  of 
Sheriff  Coley  ;  and,  November  2,  1799,  Richard  Hnrd 
reported  for  the  committee,  finding  that  Coley's  charges  for 
service  of  venires  on  the  jurors  in  question  amounted  to 
$38.27,  that  the  judges  regarded  it  a  high  price,  that  they 
audited  it  on  Coley's  representation  that  he  had  been 
obliged  to  go  into  several  towns  to  summon  the  jurors.  (') 
The  committee  further  reported  that  as  the  law  required  a 
venire  for  fifteen  jurors,  for  each  petit  jury,  it  was  presum 
able  that  that  number  was  summoned  ;  they  found  that  six 
others  were  summoned ;  that  he  made  two  journeys  to 
Dorset  and  one  to  Sandgate  in  quest  of  jurors.  The  com 
mittee  carefully  considered  his  statements  and  found  that 
he  was  entitled  to  $39.23,  a  sum  larger  than  he  actually 
charged  by  $1.06.  It  appeared  by  the  report  of  this  com 
mittee  that  Mr.  Coley  did  the  work  above  referred  to  and 
personally  attended  the  two  sessions  of  court,  and  carried 
one  prisoner  from  Bennington  to  Manchester — receiving 
for  all  the  sum  of  $53.65.  (2)  The  Legislature  ratified  this 
report  and  the  order  of  the  Council  of  Censors  was  dis 
missed. 

At  this  time  a  committee  was  appointed  to  report  what 
changes  should  be  made  in  the  "  Fee-Bill  "  and,  three  days 

(!)    Address  of  Council  of  Censors,  1800,  pp.  12-13. 
(2)    Address  of  Council  of  Censors,  1800,  p.  13. 


The  Council  of  Censors.  47 

later,  November  5,  1799,  Mr.  Josiah  Wright  for  the  com 
mittee  reported  as  follows  : 

"  That  upon  examining  the  law,  [the  committee]  are  of 
opinion  it  cannot  be  construed  so  as  to  give  an  officer  more 
than  six  cents  a  mile  for  actual  travel  for  serving  any  one 
process,  although  several  persons  may  be  named  in  it,  and 
served  on  the  same,  except  it  be  a  forced  construction. 
Therefore,  are  of  opinion  that  no  alteration  ought  to  be 
made." 

The  Council  of  Censors  took  up  this  work  of  the  legis- 
ture,  examined  it  critically,  showed  the  infelicity  in 'allow 
ing  constructive  mileage  to  Mr.  Coley  and  later  affirming  a 
principle  opposed  to  this  construction  of  the  law.  This 
case  and  several  other  important  matters  were  published  in 
the  Address  to  the  People,  and  distributed  over  the  State. 

There  is  a  peculiar  interest  in  this  case  because  it  sheds 
light  on  the  principles  which  underlay  the  structure  of  the 
Vermont  commonwealth.  No  one  could  affirm  that  Sheriff 
Coley  was  becoming  a  plutocrat  when  his  fees  for  an  entire 
year  were  only  $53.65  ;  nor  can  one  fail  to  admire  the  fear 
less  action  of  the  Censors  who  bravely  examined  every  detail 
of  the  case  and  laid  it  before  the  people  of  the  State.  Here 
reappears  the  spirit  of  John  Hampden  who  will  not  yield  a 
principle  even  though  the  amount  at  issue  be  but  twenty 
shillings. 

The  fourth  Council  of  Censors  met  at  Woodstock  in 
December,  1806.  No  amendments  to  the  Constitution'  were 
proposed  ;  but,  in  the  address  to  the  people,  they  suggested 
that  the  Legislature  should  change  several  laws.  One  was 
the  act  of  November  3,  1800,  in  support  of  the  gospel,  the 
objection  being  that  it  was  contrary  to  the  third  section  of 
the  bill  of  rights ;  the  other  law  was  the  one  that  required 
an  alien  or  stranger  to  remain  three  years  in  the  State  before 
he  could  acquire  the  privileges  of  citizenship,  the  change 
suggested  making  it  apply  to  all  citizens  alike,  native  or 


48  The  Council  of  Censors. 

adopted,  agreeably  to  the  thirty-ninth  section  of  the  Consti 
tution.  Q 

The  fifth  Council  of  Censors  met  at  Montpelier,  June 
2-4,  and  October  14 — November  1,  1 813,  and  at  Middlebury, 
January  19-24,  1814.  (2)  This  time  a  large  number  of 
amendments  were  proposed,  but  of  these  we  only  mention 
the  most  important.  The  plan  for  a  Senate  to  take  the  place 
of  the  Executive  Council  that  was  proposed  in  1702  and 
failed  of  ratification  by  the  convention,  was  now  renewed 
with  several  suggested  changes.  It  was  to  consist  of  twenty- 
four  members  apportioned  among  the  counties  according  to 
population  ;  the  term  of  office  was  to  be  three  years,  one- 
third  retiring  each  year.  The  judges  of  the  Supreme  Court 
were  to  serve  during  good  behavior  subject  to  removal  from 
office  on  a  two-thirds  vote  of  both  houses  of  the  Legisla 
ture.  It  was  proposed,  also,  that  an  amendment  be  added 
prohibiting  the  suspension  of  the  writ  of  habeas  corpus 
under  any  circumstances. 

No  changes  had  been  made  in  the  constitution  for 
twenty -one  years,  and  none  had  been  suggested  by  the  Coun 
cil  of  Censors  for  fourteen  years.  A  strong  effort  was  now 
made  to  bring  the  Vermont  Constitution  up  to  a  point  of 
excellence  that  should  cause  it  to  rank  with  those  of  the 
sister  states.  On  February  22,  1814,  Charles  Marsh,  Esq., 
delivered  an  address  (3)  at  Norwich  on  the  occasion  of  the 
celebration  of  Washington's  birthday.  His  theme  was  the 
proposed  amendments.  He  argued  in  favor  of  a  senate  to 
check  the  legislation  of  the  lower  house;  he  would  give 
the  judiciary  greater  independence  by  extending  the  tenure 
of  office  of  the  judges.  He  disapproved  of  the  idea  of 
electing  the  executive  council  on  a  general  ticket  because 
men  would  be  obliged  to  vote  for  men  with  whom  they  were 

(!)     Proceedings  of  Council  of  Censors,  Vermont  State  Library. 

(2)  Journal  of  Council  of  Censors,  Vermont  State  Library. 

(3)  An  Essay  on  the  Amendments  Proposed  :  Hanover,  N.  H.  ; 
Printed    by  Charles    Spear.      Pamphlet  of    21  pp.,   Vermont  State 
Library. 


The  Council  of  Censors.  49 

not  acquainted.  Representation  in  the  senate  would,  he 
asserted,  secure  the  election  of  men  who  were  known  by 
their  neighbors.  He  cited  the  fickleness  of  France  as  shown 
in  her  national  assembly,  and  endorsed  the  views  of  Wash 
ington  that  the  salaries  of  judges  should  not  be  diminished 
during  continuance  in  office. 

The  Convention  called  to  consider  the  proposed  amend 
ments  met  at  Montpelier  June  7,  1814,  and  completed  their 
work  June  9.  Not  an  amendment  suggested  by  the  Coun 
cil  of  Censors  was  endorsed.  Twenty-three  amendments 
were  negatived  without  a  dissenting  vote;  the  proposi 
tion  for  a  senate  commanded  twenty  votes  in  its  favor, 
while  one  hundred  and  eighty -eight  voted  against  it. 
The  amendment  prohibiting  the  suspension  of  the  writ 
of  habeas  corpus  polled  the  strongest  vote  in  its  favor  of 
any  amendment,  but  it,  too,  went  clown  with  fifty-one  yeas 
in  its  favor  to  one  hundred  and  fifty-six  nays  opposed  to 
its  ratification.  (')  The  sentiments  of  Mr.  Marsh  were  evi 
dently  not  shared  by  a  majority  of  the  citizens  of  Vermont, 
for  the  people  were  not  ready  for  these  advanced  steps  in 
political  life. 

The  sixth  Council  of  Censors  met  at  Montpelier  and 
held  three  sessions :  June  7-8,  October  17-27,  1820  ;  and 
March  15-26,  1821.  Five  amendments  (2)  were  proposed 
and  a  Constitutional  Convention  was  called.  The  amend 
ments  in  brief  were  to  vest  the  legislative  po\ver  in  the 
Executive  Council  and  House  of  Representatives;  to  appor 
tion  the  representatives  so  that  there  should  be  two  repre 
sentatives  for  every  2,000  inhabitants  ;  to  prevent  any  judge 
of  the  supreme  court  from  holding  any  other  state  or  town 
office  ;  to  vest  the  executive  power  in  a  governor  and  lieu 
tenant-governor  ;  and  to  make  the  period  of  service  of  the 
supreme  court  judges  seven  years.  It  further  provided  for 

( ' )     Constitutional    Conventions    of    Vermont,    Vermont   State 
Library. 

(2)   Journal  of  Council  of  Censors,  Vermont  State  Library. 


50  The   Council  of  Censors. 

the    removal  of    the  judges  by   impeachment,   should   an 
occasion  arise  for  such  a  step. 

The  Constitutional  Convention  met  at  Montpelier, 
February  21-23,  1822,  to  consider  the  amendments  pro 
posed  by  the  Censors.  It  sat  only  two  days  and  adjourned 
without  date.  The  first  amendment  was  defeated  with  no 
one  to  support  it ;  the  vote  on  the  second  stood  fourteen 
yeas,  two  hundred  and  two  nays  ;  the  third  stood  yeas 
ninety-three,  nays  one  hundred  and  twenty-one  ;  the  fourth 
was  discarded  but  the  vote  was  not  given  ;  the  fifth  stood 
yeas  nineteen,  nays  one  hundred  and  ninety-three.  (')  Not 
an  amendment  was  ratified,  and  Vermont's  fundamental 
law  stood  just  where  it  did  when  she  entered  the  Union  in 
1791. 

The  seventh  Council  of  Censors  met  at  Montpelier  for 
two  sessions — June  6-8,  and  October  15-26  ;  and  at  Bur 
lington  November  26-30,  1827.  It  proposed  three  amend 
ments^)  and  called  a  Constitutional  Convention.  For 
the  fourth  time  a  Senate  was  suggested  as  a  second 
branch  of  the  legislature,  a  qualified  veto  power  was  given 
to  the  governor,  and  it  was  further  proposed  that  the  priv 
ileges  of  citizenship  should  be  denied  to  foreigners  until 
they  should  be  naturalized  under  the  laws  of  the  United 
States. 

The  Convention  met  at  Montpelier  June  26-28,  1828. 
It  passed  the  third  amendment,  as  to  naturalization  as  a 
requisite  for  citizenship  in  the  State,  by  a  vote  of  one 
hundred  and  thirty-four  for  tu  ninety-two  against  the  meas 
ure;  but  the  first  two  were  defeated,  the  vote  on  the  Senate 
and  veto  power  standing  yeas  forty-seven,  nays  one  hun 
dred  and  eighty-two.(3) 

(')  Vermont  Constitutional  Conventions,  Vermont  State  Library  ; 
Thompson's  Vermont,  Part  II,  p.  126. 

(2)  Journal  of  Council  of  Censors,  Vermont  State  Library. 

(3)  Vermont  Constitutional  Conventions,  Vermont  State  Lib 
rary  ;  Thompson's  Vermont,  Part  II,  pp.  125-127. 


The  Council  of  Censors.  51 

The  eighth  Council  of  Censors  met  at  Montpelier  for 
two  sessions,  June  4-6,  and  October  15-24,  1834,  and  at 
Middlebury  for  the  third  session,  January  7-16,  1835.  It 
proposed  nineteen  amendments  to  the  Constitution  and 
called  a  Constitutional  Convention. 

The  Convention  met  at  Montpelier  January  6-14, 
1836,  and  adopted  twelve  of  the  amendments  proposed  bv 
the  Censors.  Among  the  most  important  were  the  meas 
ure  providing  a  Senate  to  replace  the  Executive  Council, 
as  a  second  branch  of  the  Legislature,  apportioning  the 
Senators  among  the  counties  according  to  their  population, 
giving  it  sole  power  to  try  impeachments,  vesting  the  exe 
cutive  power  in  a  governor  and  lieutenant-governor,  pro 
hibiting  the  suspension  of  the  writ  of  habeas  corpus  for  any 
reason,  and  providing  for  the  election  of  certain  officials  by 
counties  and  probate  districts. (')  There  is  a  certain  interest 
in  considering  the  vote  on  the  amendment  providing  for  a 
Senate.  The  proposition  was  now  for  a  fifth  time  before  a 
Vermont  Constitutional  Convention. (2)  Judge  Chipman(3) 
had  addressed  the  Convention  the  first  day  of  the  session,  and 
yet  when  this  amendment  was  reached  it  was  ratified  by 
the  slender  majority  of  three,  the  yeas  being  one  hundred 
and  sixteen  and  the  nays  one  hundred  and  thirteen.  A 
motion  to  reconsider  this  vote  was  made  and  lost  by  a  vote 
of  one  hundred  and  ten  to  one  hundred  and  nineteen. (4) 
This  action  abolished  the  Executive  Council  and  placed  Ver 
mont  on  a  plane  with  the  other  States  in  that  her  Legisla 
ture  was  now  bi-cameral. 

The  Censors  had  suggested  the  amendment  in  1792,  in 
1814,  in  1820,  and  in  1827,  and  each  time  the  Convention 
following  the  Censors  had  vetoed  the  measure.  Perhaps 

(')     Journal  of  Council  of  Censors,  Vermont  State  Library. 

('2)     Vermont  Constitutional  Conventions,  Vermont  State  Lib 
rary. 

(3)  Judge  Chipman's  Address,  Vermont  State  Library. 

(4)  Vermont  Constitutional  Conventions. 


52  The  Council  of  Censors. 

there  is  no  more  striking  illustration  in  Vermont's  constitu 
tional  history,  to  show  how  the  radical  or  progressive  ideas 
of  the  Censors  were  sent  to  the  rear  by  the  conservative 
constitutional  conventions,  than  the  time  and  persistency  re 
quired  to  establish  a  Senate  in  place  of  the  Executive  Coun 
cil.  It  was  adopted  forty-four  years  after  it  was  first 
proposed,  and  after  it  had  been  proposed  and  defeated  four 
times. 

The   Later  Councils  of   Censors  and  Conventions, 
1842—  \  869. 

The  ninth  Q  Council  of  Censors  held  three  sessions : 
two  in  Montpelier  and  one  in  Burlington.  They  proposed 
seven  amendments  and  called  a  Convention  to  meet  in 
Montpelier  in  January,  1842.  The  amendments  proposed 
failed  of  adoption,  not  one  passing  by  the  requisite  vote  of 
the  convention.  It  may  be  interesting  to  note  the  nature  of 
some  of  these  as  proposed  by  the  Censors,  viz  :  that  the 
general  State  election  be  held  the  second  Tuesday  in  Octo 
ber  annually  forever  ;  that  the  legislature  meet  on  the  first 
Thursday  in  June  each  year  until  by  law  some  other  day 
should  be  selected ;  that  the  Senate  be  divided  into  classes, 
one-third  retiring  each  year,  the  senatorial  term  being  three 
years ;  that  sheriffs  and  high  bailiffs  be  elected  by  the  free 
men  of  the  counties;  that  justices  of  the  Supreme  Court  be 
elected  for  seven  years,  subject  to  removal  by  impeachment 
brought  by  a  two-thirds  vote  of  each  branch  of  the  legisla 
ture.  The  Council  of  Censors  was  unwilling  to  have  the 
method  of  suggesting  amendments  to  the  Constitution  trans 
ferred  from  the  Council  of  Censors  to  the  legislature.  They 
proposed,  however,  to  give  the  people  the  privilege  of  vot 
ing  directly  on  amendments,  either  to  adopt  or  reject.  In 
this  case  each  voter  could  register  his  opinion  on  the  amend 
ments  proposed. 

(])     Thompson's  Vermont,  Part  II,  pp.  125-127  ;  Niles'  Kegister, 
Vol.  63,  Nov.  19,  1842. 


The  Council  of  Censors.  53 

The  tenth  Council  met  in  1848-9  and  the  constitutional 
convention  which  passed  upon  its  work  met  in  Montpelier, 
Jan.  2-14,  1850.  It  ratified  amendments  to  the  Constitu 
tion  to  the  effect  that  the  people  should  elect  the  assistant 
judges,  sheriffs,  high  bailiffs  and  judges  of  probate ;  that 
justices  of  the  peace  should  be  elected  by  the  people,  and 
that  senators,  to  be  eligible,  should  be  at  least  thirty  years 
old. 

The  eleventh  Council  of  Censors  met  at  Montpelier  in 
October  1855,  and  proposed  a  series  of  amendments,  none 
of  which  were  ratified.  Some  of  these  propositions  were 
for  biennial  sessions  of  the  legislature  and  two-year  periods 
for  State  officers  ;  that  the  house  of  representatives  be  com 
posed  of  150  members  to  be  apportioned  among  the  coun 
ties,  each  county  to  have  at  least  two,  the  counties  being 
divided  into  districts  on  an  equitable  basis ;  that  the  Senate 
should  be  composed  of  four  members  from  each  county,  the 
senatorial  term  to  be  four  years,  with  the  body  divided  into 
two  classes,  one-half  retiring  biennially  ;  that  the  judges  of 
the  Supreme  Court  be  elected  for  six  years,  one-third  retir 
ing  each  two  years  ;  that  a  constitutional  convention  be 
composed  of  ninety  delegates,  apportioned  among  the  coun 
ties,  each  having  at  least  two,  the  rest  being  apportioned 
among  the  counties  according  to  population. 

It  seems  strange  that  not  one  of  these  proposed  amend 
ments  was  ratified.  One  may  reasonably  infer  that  the 
Councils  of  Censors  were  more  nearly  abreast  of  the  times 
in  governmental  affairs,  while  the  constitutional  conven 
tions  represented  the  conservatism  of  the  State. 

In  1862  the  twelfth  Council  of  Censors  was  chosen.  It 
met  but  proposed  no  amendments.  At  this  time  the  Civil 
War  was  in  progress,  and  the  larger  danger  of  disunion 
overshadowed  any  defects  which  might  otherwise  have  been 
found  in  the  commonwealth's  fundamental  law. 

The  thirteenth  and,  as  it  proved,  the  final  Council  of 
Censors  met  in  Montpelier,  June  2,  1869.  It  was  composed 


54  The  Council  of  Censors. 

of  thirteen  members  :  Henry  Lane,  J.  B.  Hollister,  William 
Harmon,  Jasper  Rand,  H.  Henry  Powers,  J.  R.  Cleveland, 
Nathaniel  W.  French,  Charles  C.  Dewey,  Charles  K.  Field, 
Timothy  P.  Redfield,  Charles  Reed,  Joseph  W.  Colbnrn, 
and  Jonathan  Ross.  The  Censors  met  in  the  Senate  Cham 
ber  at  Montpelier,  June  2,  1869.  They  held  three  sessions  : 
July  2-4,  July  27  to  August  6,  and  October  19-22. 

At  the  afternoon  session  of  June  2,  Mr.  J.  W.  Colbnrn 
introduced  a  resolution  that  a  committee  of  three  should  be 
appointed  to  consider  a  plan  of  changing  the  method  of 
amending  the  Constitution  "  so  as  to  refer  to  legislative 
action  for  propositions,  and  refer  directly  to  the  people  for 
a  tinal  decision,  as  more  appropriate  and  less  expensive 
than  the  present  system  and  more  in  accordance  with  repub 
lican  ideas  and  democratic  equality."  On  that  committee 
were  appointed  Mr.  Col  burn,  Mr.  Lane,  Mr.  Powers. 
Saturday,  July  31,  Mr.  Colbnrn  for  the  minority  of  the 
committee  begged  leave  to  report  in  favor  of  abolishing  the 
Council  of  Censors  for  reasons  which  in  substance  are  as 
follows : 

There  were  good  reasons  for  having  the  Council  when 
it  was  adopted,  but  these  reasons  exist  no  longer.  (')  Then 
we  had  fewr  newspapers,  few  books,  few  schools.  It  was  felt 
to  be  unsafe  to  entrust  the  amending  of  the  Constitution 
directly  to  the  people.  We  adopted  the  present  system 
from  Pennsylvania — one  used  by  no  other  State  and  dis 
carded  by  Pennsylvania  after  giving  it  a  brief  trial.  Since 
1850  the  people  have  taken  little  interest  in  amendments  to 
the  Constitution  ;  not  one  in  ten  seemed  to  understand  the 
Constitution  or  how  it  was  amended  ;  and  a  system  so  little 
understood  should  not  exist  longer.  To-day  the  people  are 
better  educated,  more  capable  of  judging  on  constitutional 
matters ;  hence  it  would  be  well,  once  in  ten  years,  to  sub 
mit  to  them  the  proposition  whether  the  Constitution  needs 

(])     Journal  of  Council  of  Censors,  Montpelier,  1869. 


The  Council  of  Censors.  55 

revision.     When  onr  government  was  organized  we  had  two 
great  parties—1'  Federal"  and  "  Kepnblican."    "  The  former 
took  the  ground  that  the  people  were  not  to  be  trusted  with 
the  powers  of  self-government;  the  latter  contended  that 
they   were  safe   depositories  of  this  power."  (')     The  old 
Federal  party  has  gone,  hut  the  relic  of  Federalism  remains 
in  this  antiquated  custom  of  having  a  Council   of  Censors  ; 
and  this  is  left  onlv  because  of   the  apathy  of  the  people; 
for  "  the  people  know  and  care  but  little  about  the  changes 
of  their  Constitution."  Does  some  one  argue  that  the  Coun 
cil   has   other  duties   besides  amending   the   Constitution  ? 
They  are  to  review  legislation,  but  in  the  heat  of  the  War  of 
1812  they  censured  some  acts  of  the  legislature.    "  It  undid 
nothing,  it  righted  nothing."     Its  action  came  too  late  and 
was  not  effective.     The   people   themselves  remedied    the 
evil  legislation  by  failure  to  re-elect  the   members  in  ques 
tion,  and   this  remedy  is  always  with   them  and  efficacious. 
The  ballot-box  and  the  Supreme  Court  are  sufficient  reme 
dies, — let  these  be  used.     This  machinery  is  cumbersome, 
antiquated  and  has  been  almost  useless  for  three-fourths  of 
a  century.     The  Council  of  1855  proposed  amendments,  but 
the  Convention  following  in  its  wake  voted  them  down  ; 
but  all  this  was  expensive.     Mischief  is  liable  to  be  done  in 
such  ways.     The  small  towns  are  guarded   in   their  rights, 
each  one  having  a  unit  of  representation  ;  this  they  can  not 
lose,  for  they  will  not  yield  it.     A  two-thirds  vote  of  the 
Legislature  once  in  ten  years  will  correct  any  evils  that  may 
arise.     The  argument  of   "  let  well   enough  alone"   is  not 
germane  to  the  question.     We  have  improved  implements 
in  agriculture  and  mechanical  lines,  then  why  not  improve 
governmental  machinery  ?     For  the  old  Executive  Council 
we  substituted  the  Senate  in  1836  and  from  time  to  time  we 
have  made  other  changes.      We  want  our  people   to  know 
our    Constitution,    to    take    an    interest    in     it.        Other 

(')     Journal  of  1800,  p.  43. 


56  The  Council  of  Censors. 

states  succeed  in  this  regard;  shall  Vermont  be  less 
progressist  ?  Some  one  complains  that  the  expense  will 
be  burdensome  with  the  Legislature  "  continually  tam 
pering"  with  the  business  now  and  formerly  done  by 
the  Censors ;  and  that  its  sessions  will  be  spun  out  to  too 
great  length.  But  this  is  lame ;  for  it  can  be  done  only 
once  in  every  decade.  The  session  would  never  be  delayed 
more  than  a  week  on  this  business,  and  the  added  expense 
is  imaginary,  since  the  Council  meets  once  in  seven  years 
with  the  possibility  of  a  constitutional  convention  to  follow 
it,  while  the  present  plan  is  to  suggest  changes  only  once  in 
ten  years.  Amendments  proposed  by  one  Legislature  would 
lie  over  until  the  next  Legislature  in  order  that  the  news 
papers  might  lay  them  before  the  people.  In  this  way  the 
people  can  express  their  opinions  more  directly  as  to  the 
fundamental  law  of  the  state.  Give  the  people  a  chance 
to  say  whether  or  not  they  would  like  this  plan.  It  is  the 
duty  of  this  Council  to  lay  this  before  the  people  for  their 
verdict.  The  minority  of  this  committee  feel  that  this 
action  is  demanded  by  the  people. 

On  the  afternoon  of  Tuesday,  August  3,  Judge  H. 
Henry  Powers  for  the  majority  of  the  committee  made  a 
supplementary  report  to  this  effect.  (')  "  Our  Constitution 
was  framed  for  the  whole  people."  It  does  not  govern 
municipalities  but  the  people  ;  it  should  be  controlled  by 
the  people,  and  the  municipalities  ought  not  to  control  it. 
The  Council  of  Censors  is  elected  by  the  people  on  a  general 
ticket.  (a)  "  Theoretically,  then,  the  Council  created  by  the 
people  themselves  more  emphatically  represents  the  popular 
voice  than  any  other  tribunal  in  our  frame  of  government." 
Evidently  this  was  the  purpose  of  the  framers  of  the  Con 
stitution  when  they  established  the  Council.  It  would  have 
been  better  to  submit  amendments  to  a  Convention  repre 
senting  the  people  not  the  towns  ;  but  this  was  not  the  case. 

H     Journal  of  1869,  p.  70. 
(-)     Journal  of  1869,  p.  71. 


The  Council  of  Censors.  57 

Delegates  to  Constitutional  Conventions  have  been  chosen 
by  towns.  A  town  with  fifty  voters  can  thus  have  a  voice 
in  determining  the  organic  law  of  the  state  equal  to  that  of 
Kutland  with  fifteen  hundred  or  two  thousand  voters.  (') 
This  is  not  right  or  just.  An  amendment  to  change  the 
method  of  calling  Constitutional  Conventions  so  as  to  repre 
sent  the  whole  people  would  bring  the  people  nearer  to  a 
direct  participation  in  amending  the  Constitution,  than  the 
plan  proposed  by  the  minority  report.  As  the  Senate  is 
now  made  up  it  represents  the  idea  of  municipality  because 
each  county,  whatever  its  size,  has  one  at  least  (the  other 
sixteen  being  given  to  the  larger  counties  on  the  basis  of 
population)  and  the  House  represents  the  towns  as  corpora 
tions  regardless  of  population  ;  and  yet  the  minority  of  this 
committee  recommend  the  placing  of  the  initiative  of 
amendment  with  the  Legislature  thus  made,  as  being  nearer 
the  people.  What  matters  it  if  other  states  have  not  employed 
it;  or,  if  they  have  used  it  and  then  discarded  it  ?  Vermont 
has  other  institutions  not  possessed  by  other  states ;  but 
this  is  no  argument  why  she  should  discard  them.  "  The 
very  soul  of  an  organic  law — of  a  constitution  for  a  com 
monwealth,  \*  permanency  "  (2)  The  people  demand  a  per 
manent  law  as  a  protection  for  their  rights. 

On  the  ground  of  economy,  a  Council  of  Censors  once  in 
seven  years,  followed  by  a  Constitutional  Convention,  would 
prove,  he  believed,  every  whit  as  economical  as  the  method 
proposed  by  the  minority.  If  the  Legislature  can  propose 
amendments  once  in  ten  years  "  a  large  portion  of  their 
time  will  be  spent  in  tinkering  it."  The  Constitution  will 
then  be  a  target  for  repeated  blows  by  the  members  of  the 
Legislature ;  and  all  this  will  be  expensive.  The  people  do 
not  desire  to  confer  upon  the  Legislature  the  other  powers 
held  by  the  Council  of  Censors,  then  why  give  up  this  one? 

(])     Journal  of  Censors,  1869,  p.  71. 
C2)     Journal  of  Censors,  1869,  p.  72. 


58  The  Council  of  Censors. 

Several  efforts  have  been  made  in  the  past  to  do  away  witli 
the  Council  of  Censors,  but  they  have  not  met  with  success, 
"  and  although  in  deference  to  the  wishes  of  a  portion  of 
our  people  who  call  for  this  change  we  may  be  constrained 
to  vote  to  submit  the  proposed  amendment  of  the  minority 
to  a  convention,  still  in  justice  to  ourselves  we  are  bound  to 
express  our  views  against  the  wisdom  of  such  a  change".  (r) 

On  October  22,  1869,  the  Council  of  Censors  voted  to 
present  a  series  of  proposed  amendments  to  be  acted  on  by 
a  convention  duly  elected  by  the  people,  the  substance  of 
which  was:  (1)  That  the  Council  of  Censors  should  be 
abolished,  and  that  the  Legislature  should,  once  in  ten  years, 
have  the  right  to  initiate  amendments  to  the  Constitution  ; 
(2)  no  special  laws  for  corporations  except  for  municipal 
purposes  ;  (3)  State  officers  in  all  departments  to  be  elected 
biennially;  (4)  senators  and  town  representatives  to  be  elect 
ed  for  two  years;  (5)  judges  of  the  Supreme  Court  to  be  ap 
pointed  by  the  Governor,  "  by  and  with  the  advice  and  con 
sent  of  the  Senate."  The  term  of  office  of  judges  should  be 
six  years,  and  they  should  be  divided  into  classes,  the  term  of 
office  of  one-third  expiring  every  two  years.  The  salaries 
should  not  be  diminished  during  the  term  of  office.  But  if 
the  above,  relative  to  election  of  judges,  should  fail  of 
ratification,  then  it  was  proposed,  as  a  substitute,  that  they 
should  be  elected  biennally  and  that  their  term  of  office 
should  be  two  years  ;  (6)  women  to  have  no  more  restric 
tions  than  men  in  regard  to  voting. 

The  Council  of  Censors,  October  19,  1869,  voted  to 
call  a  Constitutional  Convention  to  meet  at  Montpelier,  Vt., 
the  second  Wednesday  in  June,  1870,  "  to  consider  certain 
amendments  to  the  Constitution  of  this  State  proposed  by 
the  Council  of  Censors." 

The  Convention  met  according  to  the  call  of  the  Cen 
sors  and  proceeded  to  consider  the  amendments  proposed. 

C1)     Journal  of  1869,  p.  72. 


The  Council  of  Censors.  59 

It  is  curious  to  note  the  spirit  of  the  Convention  as  mani 
fested  in  the  vote  on  the  different  articles.  That  suggest 
ing  biennial  sessions  of  the  Legislature  was  carried  by  a 
majority  of  h've  votes  out  of  a  total  of  233;  that  making 
the  term  of  judges  of  the  Supreme  Court  six  years  was 
defeated  by  a  majority  of  two  hundred  and  twenty-nine 
out  of  a  total  vote  of  two  hundred  and  thirty-one,  but  two 
votes  being  cast  in  its  favor.  The  amendment  proposing 
woman  suffrage  received  but  one  vote  in  its  favor,  while 
two  hundred  and  thirty-three  were  cast  against  it.  The 
article  abolishing  the  Council  of  Censors  and  giving  the 
power  to  the  Legislature  to  take  the  initiative  in  amending 
the  Constitution,  and  this  once  in  ten  years,  was  carried  by 
a  vote  of  one  hundred  and  twenty-three  in  its  favor  and 
eighty-five  against  the  measure, — not  a  two-thirds  vote. 

General  Comment. 

At  the  February  session  of  the  Legislature,  1779,  an 
act  was  passed  declaring  that  the  Constitution  as  estab 
lished  by  general  convention  at  Windsor,  in  1777,  with  the 
alterations  made  agreeably  to  Section  44  of  the  Constitution 
"  shall  be  forever  considered,  held  and  maintained,  as 
part  of  the  laws  of  this  State. "(') 

A  similar  act  was  passed  at  Windsor  at  the  June  ses 
sion  of  1782  "  to  prevent  disputes  respecting  the  legal  (') 
force  of  the  Constitution  of  this  State"  and(3)  again  in 
1787.  In  these  two  acts  the  Constitution  is  treated  as  if  it 
were  a  legislative  act  in  point  of  quality. 

Judge  Chipman  in  his  Memoirs  of  Thomas  Chitten- 
den(*)  shows  that  the  early  people  of  Vermont,  in  common 
with  many  others,  held  that  sovereignty  was  vested  in  the 

(')  Slade,  State  Papers,  p.  288. 

(2)  Slade,  State  Papers,  p.  449. 

(8)  Memoirs  of  Thomas  Chittenden,  p.  111. 

(4)  P.  102. 


60  The  Council  of  Censors. 

Legislature,  or  in  the  people,  but  manifested  in  the  action 
of  the  Legislature.  From  this  it  would  follow  that  a  Con 
stitution  would  stand  only  on  an  equal  footing  with  acts  of 
the  Legislature.  This  view  changed  when  the  Constitu 
tion  of  the  United  States  was  adopted  as  the  supreme  law 
of  the  land. 

In  a  previous  dissertation  we  have  shown  the  origin 
of  the  Council  of  Censors,  as  having  some  features  ana 
logous  to  the  Greek  ephors ;  that  it  had  some  features 
like  those  of  the  Roman  Censors,  whence  it  took  its 
name ;  that  it  was  a  feature  of  Rousseau's  Social  Contract; 
that  in  the  republics  of  France  and  Naples,*  at  one  time,  it 
was  proposed  seriously  as  the  people's  check  on  the  usurpa 
tions  of  the  various  departments  of  government.  The 
Radicals  of  Pennsylvania  adopted  it  in  the  Constitution  of 
that  State  in  1776,  and  discarded  it  in  the  Constitution  of 
1790.  In  Pennsylvania  only  one  Council  of  Censors  was 
ever  elected  and  this  body  by  a  majority  vote  favored  sub 
mitting  a  proposition  for  amending  the  Constitution  by 
abolishing  this  provision.  A  two-thirds  vote  was  needed 
to  carry  this,  hence  it  was  never  submitted  as  an  amend 
ment. 

'Vermont  adopted  this  provision  with  the  entire 
Pennsylvania  Constitution,  with  certain  minor  changes,  in 
1777.  Fourteen  times  at  intervals  of  seven  years,  Councils 
of  Censors  were  elected,  and  nine  Constitutional  Conven 
tions  were  called  to  consider  proposed  amendments.  Finally 
in  1870  it  was  abolished  and  the  initiative  for  amending  the 
Constitution  was  vested  in  the  Legislature,  the  power  to  be 
active  only  once  in  ten  years.  Judge  Chipman  in  his 
Memoirs  of  Thomas  Chittenden  (')  says  that  the  Vermont 
Council  of  Censors  being  elected  on  a  general  ticket,  this 
threw  the  advantage  into  the  hands  of  the  dominant  party, 
and  that  by  this  means  the  minority  was  not  represented  in 

(')    P.  129. 


The  Council  of  Censors.  61 

the  Council.  The  Censors,  elected  by  a  majority  of  the 
electors,  would  meet,  consider  the  defects  of  the  Constitu 
tion,  and  possibly  suggest  remedies  ;  in  which  case  it  would 
call  a  Constitutional  Convention.  These  Conventions  were, 
except  in  one  instance,  185T,  made  of  delegates,  one  from 
each  town.  As  the  recommendations  of  the  Censors  were 
placed  before  the  people  before  the  delegates  to  the  Consti 
tutional  Convention  were  elected, the  minority  party  would 
succeed  in  sending,  in  most  cases,  a  majority  of  delegates 
opposed  to  the  provisions  of  the  Censors.  The  Councils  of 
Censors  were,  then,  radical  or  progressive,  while  the  Con 
ventions  were  conservative. 

From  1793  to  1836  only  one  amendment  was  ratified 
by  a  Constitutional  Convention,  and  this  denied  the  right  of 
suffrage  to  all  foreign-born  citizens  until  they  should  be 
naturalized.  In  1836,  the  amendment  to  make  the  legis 
lature  bi-cameral  passed  by  a  majority  of  only  three  votes, 
one  hundred  and  sixteen  votes  being  cast  in  favor  of  the 
measure  and  one  hundred  and  thirteen  against.  Success 
ive  Councils  of  Censors  had  three  times  previously  recom 
mended  this  change  but  it  had  always  been  rejected, 
although  Vermont  was  the  only  state  in  the  Union  having 
a  legislature  of  only  one  branch. 

The  spirit  of  progress  and  conservatism  in  the  Censors 
on  the  one  hand  and  the  Conventions  on  the  other,  is  illus 
trated  by  the  attempts  made  to  lengthen  the  term  of  the 
supreme  court  judges.  Five  times  was  the  effort  made  and 
five  times  the  measure  was  defeated.  This  was  begun  in 
1814,  was  repeated  in  1822,  1857  and  1870,  when  it 
received  the  crushing  defeat  of  two  votes  for  the  measure, 
and  two  hundred  and  thirty-one  votes  against  it.  Thus 
have  the  people  kept  a  strong  grasp  on  the  judiciary, 
calling  upon  the  bench  to  give  an  account  of  its  steward 
ship  before  the  bar  of  each  biennial  Legislature. 

Perhaps  the  greatest  controversy  between  the  Censors 
and  the  Conventions  occurred  in  connection  with  the  recom- 


62  The  Council  of  Censors. 

mendations  of  the  Council  of  1856.  That  body  prepared 
a  series  of  amendments,  among  them  the  provision  for 
biennial  sessions  of  the  Legislature,  with  provision  for  two- 
year  periods  for  State  officials,  and  then  issued  a  call  for  a 
Constitutional  Convention  of  ninety  members,  apportioned 
among  the  counties,  "  in  such  manner  as  will,  in  our  opin- 
iorijC)  protect  the  just  rights  of  all."  The  Address  further 
stated,  u  And  we  submit  to  you  whether  the  principle  on 
which  said  Convention  is  based  is  not  under  existing  insti 
tutions  in  accordance  with  your  views  of  right,  in  matters 
relating  to  the  fundamental  and  organic  Laws  of  the  State." 
The  Convention  of  1857  met  and  organized.  A  com 
mittee  of  one  from  each  county  was  appointed  to  decide 
upon  a  course  of  action  with  reference  to  the  proposed 
amendments,  with  Paul  Dillingham  as  chairman.  His 
report  recited  that  the  amendments  were  numerous  and 
important,  that  they  contemplated  many  and  radical 
changes  in  our  Constitution.  The  committee  declined  to 
give  an  opinion  as  to  merits  or  demerits  of  the  amendments. 
It  regarded  the  plan  of  limiting  the  delegates  to  ninety, 
and  apportioned  as  they  were,  as  a  startling  innovation. 
The  committee  reviewed  the  framing  and  amending  that 
had  been  done  since  1777,  and  called  attention  to  the  state 
ment  in  the  preamble  of  the  instrument,  that  it  should  be 
permanent  and  unchanged,  until  it  should  be  changed  in  a 
manner  provided  by  the  express  terms  of  the  instrument. 
The  Convention  expressed  its  views  to  the  people  in  four 
resolutions  to  the  effect  (1)  that  the  Censors  had  acted 
unwisely  in  thus  calling  a  Convention ;  (2)  that  in  the 
absence  of  precise  words,  the  practice  and  usage  of  many 
years  had  confirmed  the  purpose  of  the  fathers  to  establish 
town  representation  in  Conventions,  which  purpose  it  urged 
the  next  Legislature  to  confirm  explicitly  ;  (3)  that,  because 
these  delegates  did  not  represent  the  towns,  the}7  were 

( } )    Address  of  Council  of  Censors,  1856,  p.  108. 


The  Council  of  Censors.  63 

chosen  by  their  constituencies  to  reprobate  the  action  of  the 
Censors,  not  to  give  validity  to  their  action  ;  and  (4)  that 
as  this  Convention  was  not  duly  constituted  as  prescribed 
by  time-honored  usage  and  custom  it  would  take  no  further 
action.  It  adjourned  and  thus  referred  the  points  at  issue 
to  the  judgment  of  the  people. 

In  these  collisions  between  the  progressive  spirit  of 
the  able  men  who  set  on  foot  progressive  movements  in 
governmental  matters,  and  the  conservative  spirit  of  the 
people  in  the  Constitutional  Conventions,  one  sees  an  exam 
ple  of,  the  working  of  the  referendum.  The  experience  of 
Vermont  has  been  repeated  in  Switzerland  since  1874.  Sir 
Henry  Maine  says,  (')  "  Contrary  to  all  expectations,  to  the 
bitter  disappointment  of  the  authors  of  the  Referendum, 
laws  of  the  highest  importance,  some  of  them  openly 
framed  for  popularity,  have  been  vetoed  by  the  people  after 
they  had  been  adopted  by  the  Federal  or  Cantonal  Legis 
lature." 

The  Convention  of  1870  was  made  up  of  delegates 
from  each  town  and,  hence,  was  duly  constituted.  Its  cau 
tious  work  is  in  evidence  when  one  considers  that  the  matter 
of  biennial  sessions  of  the  legislature  was  carried  by  a  major 
ity  of  only  five  votes  out  of  two  hundred  and  thirty-three  ; 
that  the  proposition  granting  the  right  of  suffrage  to  women 
received  only  one  vote  in  its  favor  to  two  hundred  and 
thirty-three  in  opposition  ;  and  that  the  Council  of  Censors 
was  abolished  and  the  method  of  taking  the  initiative  in 
amending  the  Constitution  was  lodged  in  the  Legislature  by 
a  majority  of  only  thirty-eight  out  of  a  vote  of  two  hun 
dred  and  eight. 

(!)    Popular  Government,  pp.  96-7. 


RETURN      CIRCU 

TO  m+       202  M 
LOAN  PERIOD  1 
HOME  USE 

LATION  DEPARTA 

ain  Library 

2 

IENT 

3 

4 

5 

6 

ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

1 -month  loans  may  be  renewed  by  calling  642-3405 

6-month  loans  may  be  recharged  by  bringing  books  to  Circulation  Desk 

Renewals  and  recharges  may  be  made  4  days  prior  to  due  date 

DUE  AS  STAMPED  BELOW 





• 


V 


fir, 


FORM  NO  DD  6    40m  10 '77      UNIVERSITY  OF  CALIFORNIA,  BERKELEY 

BERKELEY,  CA  94720 


Brown  unive 


78857 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


